Due Process Speedy Trial right applies in commitment cases

Michael P. Whalen won in In re Ellison, No. 112,256 (Kan. December 9, 2016), affirming Judge Burgess' dismissal of involuntary commitment proceedings based on excessive pretrial delay resulting in a Due Process violation. The state was proceeding against Mr. Ellison pursuant to the Kansas Sexually Violent Predator Act (KSVPA). He had waited (in custody) for more than four years pending trial. After preforming a Barker v. Wingo analysis, Judge Burgess ordered that Mr. Ellison be released. The KSC agreed that using the Barker test was appropriate. Even though Barker involved a Sixth Amendment speedy trial claim, the KSC cited and followed cases that used it for a Due Process speedy trial claim as well. And the KSC held that the case-by-case approach in Barker was appropriate to evaluate delay in a KSVPA proceeding as well. The KSC went on to hold that the district court correctly applied Barker in this specific case:

As demonstrated by the Barker Court's strong sentiments about the prejudice arising from pretrial incarceration in criminal cases, pretrial incarceration in this civil commitment case weighs even more heavily in favor of our holding that the delay violated due process. For example, had Ellison been committed under the act immediately upon the State filing its petition, he would have received treatment and four annual examinations and four opportunities to petition for his release. These statutory opportunities were squandered while he sat in the Sedgwick County jail.

The KSC also noted that in a criminal case, a defendant is at least entitled to jail credit for pretrial incarceration. In a KSVPA proceeding, that time "is effectively lost" for any therapeutic purposes.  Although the KSC observed that there was no evidence of improper motive on the part of the state, it had the obligation to bring Mr. Ellison's case to trial and if failed to do so. 

January 2017 KSC Docket

Here are the criminal cases on the KSC docket for January 23- 26, 2017. 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 at the appellate court website and archived (here) if you would like to watch any of these arguments.

January 23--Monday--a.m.

State v. Troy Robinson, No. 113,684 (Shawnee)

Direct appeal; Premeditated first-degree murder

Samuel D. Schirer

[Affirmed; Rosen; May 26, 2017]

• Improper exclusion of victim dating contacts
• Prosecutorial error
• Limitation of voir dire
• Inadequate sentencing notice

January 24--Tuesday--a.m.

State v. Ramiro Garcia, No. 112,502 (Johnson)

Direct appeal (petition for review); Identity theft 

Randall L. Hodgkinson

[Affirmed (after remand from SCOTUS); Beier; June 12, 2020]

• Insufficient evidence of intent to defraud
• Federal preemption
• Failure to give unanimity instruction

State v. VanRoyen, No. 116,773 (Elk)

Direct appeal (petition for review); Aggravated indecent liberties

Michael P. Whalen

[Dismissed as improvidently granted January 25, 2017]

• Preliminary hearing errors
• Insufficient evidence

January 26--Thursday--a.m.

State v. Jeramy Zwickl, No. 113,362 (Reno)

State appeal (petition for review)

Charles A. O'Hara

[Reversed; Biles; May 5, 2017]

• Application of good-faith exception to deficient search warrant affidavit

State v. Jose Delacruz, No. 116,640 (Reno)

Direct appeal (petition for review); direct contempt

Sam S. Kepfield

[Reversed; per curiam; March 2, 2018]

• Violation of Fifth Amendment right against self-incrimination

Anonymous tip of suspicious but not criminal activity is not reasonable suspicion

Samuel Schirer won in State v. Chapman, No. 111,572 (Kan. October 21, 2016), obtaining reversal of a Sedgwick County identity theft conviction. The decision turned on a search of a car, and discovery of evidence which resulted in the prosecution. Officers were responding to a dispatch about a suspicious character call in the middle of a snowy night and officers found a car matching the description given. The KSC reviewed several cases related to circumstances argued to amount to reasonable suspicion. The KSC agreed with dissenting-COA-Judge Buser that the facts in this case were lacking:

Judge Buser was correct that the facts of McKeown are much more similar to the facts of this case. In McKeown, law enforcement responded to an anonymous tip that a green pickup truck was parked near a residence on a road in a rural area and that the tipster could not determine what the unfamiliar pickup was doing in that location. Although the behavior reported was suspicious, it was not criminal. By the time law enforcement arrived, the truck had moved. This court decided that a stop of the pickup, which by then was proceeding down the roadway in a lawful manner, was not supported by reasonable suspicion. 

Results in other jurisdictions back up the McKeown reasoning that a tip of suspicious but not criminal activity is not enough to support reasonable suspicion. 

Judge Buser's preferred holding in this case also is reinforced by his observation, despite no emphasis upon it from the parties or the district court, that the tip in this case was anonymous. 

The KSC agreed that the anonymity of the tip in this case was important:  

We need not elaborate further in this case on the law governing evaluation of tip reliability. We note only that counsel and district judges in future cases should take care to perform such an evaluation in their analysis of the totality of the circumstances supporting the existence of reasonable suspicion for a car stop.

Because the stop was not legal, the KSC remanded with directions to grant Mr. Chapman's motion to suppress.

Dickey gets Dickey relief in probation violation cases

Samuel Schirer won in State v. Dickey, No. 110,325 (Kan. App. Oct. 14, 2016), obtaining a new sentence for Mr. Dickey on his second trip to the KSC. In the first case, blogged about here, the KSC held that a later factual determination regarding whether a prior burglary conviction was a person or nonperson offense was not permitted. After the first case, Mr. Dickey also had several probation revocation cases. The state argued that Mr. Dickey could not attack those sentences as illegal. The KSC held that misclassification of a prior conviction as a person felony resulted in an illegal sentence, which he could raise any time:

Our holding in Dickey I demonstrates that the proper classification of a prior crime is exclusively a matter of state statutory law. Which is simply to reiterate that "[b]ecause burglary of a 'dwelling' . . . was not included within the statutory elements making up the defendant's burglary adjudication . . . [it] should have been classified as a nonperson felony for criminal history purposes."

Having clarified that the challenge presented to Dickey's sentences in both Dickey I and here are challenges to the statutory propriety of the classification at issue—albeit with a thick overlay of constitutional law occasioned by the State's unconstitutional efforts to "save" Dickey's prior conviction as a person felony—there is no impediment to Dickey's claim that the underlying sentences he received after his probation was revoked in the three underlying cases are illegal. And that claim is identical to, and controlled by, our determination in Dickey I that the exact prior conviction at issue here was in fact misclassified. The State's remaining efforts to impose a procedural bar to the relief Dickey seeks—arguments concerning retroactivity and res judicata—are all unavailing in the context of a motion to correct an illegal sentence which can be made at any time. Dickey's prior 1992 conviction was misclassified as a person felony, and the resulting sentences are illegal.

Advising a person regarding a plea bargain is not the same as illegally dissuading a witness

Randall Hodgkinson won in State v. Wilkins, No. 109,313 (Kan. Sept. 9, 2016), reversing a Shawnee County conviction for aggravated intimidation of a witness. The state presented evidence that Ms. Wilkins spoke to a person of interest in a murder investigation and discouraged the person from entering into a cooperative agreement with law enforcement officers. The state argued to the jury and the KSC that Ms. Wilkins was "attempting to dissuade a witness from attending or giving testimony at any proceeding or inquiry authorized by law . .  "with intent to thwart or interfere in any manner with the orderly administration of justice." The KSC rejected that argument:

We acknowledge that some cases have held sufficient evidence existed that a defendant dissuaded a witness from testifying even though the word "testify" was never used. 

But the crucial difference from the cases cited above is the "witness" in this case, F.W., was a codefendant in the homicide proceedings. As such, F.W. was cloaked under the protection of the Fifth Amendment to the United States Constitution, which provides that "[n]o person . . . shall be compelled in any Criminal Case to be a witness against himself." This same right is included in both our Kansas Constitution Bill of Rights and in K.S.A. 60-423(a). See Kan. Const. Bill of Rights, § 10 ("No person shall be a witness against himself."); K.S.A. 60-423(a)  At the time Wilkins was attempting to dissuade F.W. from taking the plea bargain in this case, no evidence was presented that F.W. had waived her right against self-incrimination.

We recognize that F.W. may fit the broad definition of a witness under K.S.A. 2011 Supp. 21-5908(c)(1).  But an elemental part of the aggravated intimidation of a witness statute, K.S.A. 2011 Supp. 21-5909(a)(1), requires the witness to "giv[e] testimony," and F.W. could not do so in the homicide proceeding at the time the State argues Wilkins was dissuading her from testifying. 

As in these hearsay cases, F.W. was still protected by her Fifth Amendment privilege when Wilkins urged her not to take the plea, and, of course, the prosecutor had no control over F.W.'s decision to accept or reject the plea offer. Stated another way, accepting a plea offer and waiving her privilege were separate and distinct conditions that needed to be satisfied before F.W. would become eligible or could be compelled to testify in the proceedings. Thus, Wilkins' action in dissuading F.W. from taking a plea bargain was not, as the State argues, synonymous with dissuading F.W. from "giving testimony" at trial. As F.W.'s status as a codefendant with a constitutional privilege against self-incrimination was a bar to her "giving testimony" under K.S.A. 2011 Supp. 21- 5909(a)(1), the facts of this case simply do not fall under the purview of the statute. With the privilege intact, Wilkins was unable to dissuade F.W., a codefendant, from "giving testimony," a required element.

Because the KSC found the record lacking on the essential element, it reversed the conviction for aggravated intimidation of a witness.

The KSC did recognize but avoided another possible issue with this statute:

We resolve this case under the first prong of her argument, albeit on somewhat different grounds than those identified by the majority and dissenting opinions. In so holding, we need not reach Wilkins' additional arguments that the phrase "thwart or interfere in any manner with the orderly administration of justice" in K.S.A. 2011 Supp. 21-5909(a) is unconstitutionally vague and the Court of Appeals decision rejecting this argument. Indeed, based on the language of the statute, its legislative history, and Wilkins' argument addressing possible applications of the phrase, we recognize that a valid question arises whether the legislature intended to require bad faith in thwarting or interfering with the orderly administration of justice in order for conduct to fall within the purview of the statute. But, we leave this determination for a future case in light of our decision and analysis below. 

No weighing of aggravating factors in Jessica's Law sentencing

Christina M. Kerls won in State v. McCormick, No. 109,985 (Kan. Sept. 9, 2016), obtaining a new sentencing hearing in a Sumner County rape prosecution. The KSC affirmed Mr. McCormick's convictions, but remanded for resentencing because the district court improperly considered aggravating factors when determining whether to grant a departure in the case. The KSC applied a recent case (blogged about here) and held that the district court applied the wrong standard:

The manner in which a crime is committed and the circumstances inherent in the crime are not inevitably limited to the strict legal elements of the offense. But where, as here, the district judge explicitly referred to the piece of evidence that persuaded him as an "aggravating factor," we cannot be wholly confident that the statutory command not to conduct weighing of aggravators and mitigators was followed. As we said in Jolly, the sentencing judge may consider the manner in which a crime is committed and the circumstances inherent in the crime, as well as whether mitigators that are substantial and compelling justify a departure from Jessica's Law. But the judge may not weigh aggravators and mitigators. That is exactly what the judge himself said he was doing in this case.

As a result, the case was remanded for resentencing using the correct standard.

No evidence of theft by deception, again

Washburn student intern Brian Yearout and I won in State v. Ricke, No. 113,852 (Kan. App. September 9, 2016)(unpublished), reversing a Douglas County theft by deception conviction. The state had charged Ms. Ricke, an employee of a rental management company with theft by deception related to collection checks that were improperly deposited into property owner's accounts. The state alleged that Ms. Ricke then diverted rent payments for personal use.

The state initially charged Ms. Ricke with theft by obtaining unauthorized control over property. But after preliminary hearing, the state amended the charge to theft by deception. Both at trial and on appeal, Ms. Ricke argued that, even if state proved the scheme it alleged, it failed to prove theft by deception. The COA rejected the state's arguments that amended complaint was merely a mistake and/or that it was not authorized. Instead, the COA, citing recent KSC precedent (blogged about here) held that the amendment was effective and that, as a result, the state failed to prove the crime it charged:

Our review of the record in this case shows no evidence that Ricke obtained control over Gage Management's property by means of a false statement or representation, thus the second element of theft by deception is not met. No evidence suggests that Ricke obtained by any falsehood either her initial employment with Gage Management or her position in 2007 or 2008 which granted her access to the funds which she diverted. Nor does the evidence show that Ricke obtained control over Gage Management's property by means of any false statement or representation on a case-by-case basis when using her position to steal money from Gage Management.

The State contends that Ricke's act of not recording the settlement checks in the correct account constitutes gaining control over that property by means of Ricke's false representation that the law firm had not sent a collections check. But the State does not show how Ricke's silence could somehow be construed as "a false statement or representation." Even assuming Ricke's silence was a false statement or representation, the State makes no argument that Ricke obtained control over the property by means of those falsehoods which "deceived the property owner and upon which he or she relied," as the statute requires. 

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

[Update: the state did not file a PR and the appellate mandate issued on October 18, 2016.]

October 2016 KSC docket

Here are the criminal cases on the KSC docket for October 24-27, 2016. 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 at the appellate court website and archived (here) if you would like to watch any of these arguments.

October 24--Monday--a.m.

State v. Kristofer Wright, No. 112,635 (Sedgwick)
Direct appeal; premeditated first-degree murder
Michael P. Whalen

[Affirmed; Beier; February 16, 2018]

• Denial of right to be present
• Ineffective assistance of counsel on motion to dismiss
• Denial of statutory speedy trial
• Improper instruction on inference of premeditation
• Prosecutorial misconduct
• Improper instructions on "intentional"

State v. Zachary Eisenhour, Sr., No. 111,478 (Stafford)
Probation revocation appeal (petition for review)
Patrick H. Dunn

[Dismissed as improvidently granted; October 28, 2016]

• Lack of jurisdiction to revoke expired probation
• Illegal sentence under double rule

October 25--Tuesday--a.m.

State v. Dominic Parry, No. 113,130 (Clay)
State appeal (petition for review)
Phylemon C. Yau

[Affirmed; Biles; March 24, 2017]

• District court properly granted motion to suppress evidence (Fourth Amendment)

State v. Robert Sasser, No. 108,149 (Johnson)

Direct appeal (petition for review); burglary/criminal threat
Korey A. Kaul

[Affirmed; per curiam; March 21, 2017]

• Insufficient evidence
• Improper testimony from victim regarding damage to property

State v. Cameron Howard, No. 110,439 (Johnson)

Direct appeal (petition for review); criminal possession of firearm
Craig M. Divine

[Affirmed; per curiam; March 20, 2017]

• Completed Missouri SIS probation is not a prior conviction
• Failure to grant motion to suppress evidence (Fourth Amendment)
• Improper exclusion of defense evidence

October 26--Wednesday--a.m.

State v. Jason Robinson, No. 110,040 (Wyandotte)
Direct appeal (petition for review); aggravated burglary/aggravated battery
Randall L. Hodgkinson

[Affirmed; Stegall; August 11, 2017]

• Violation of statutory speedy trial
• Insufficient evidence of burglary
• Aggravated battery statute is unconstitutionally vague
• Improper instruction on bodily harm
• Improper admission of prior bad act evidence
• Failure to give limiting instruction
• Denial of right to be present

October 27--Thursday--a.m.

Terry McIntyre v. State, No. 111,580 (Douglas)
K.S.A. 60-1507 appeal (petition for review)
Janine Cox (brief), Randall L. Hodgkinson (argue)

[Reversed/Remanded; Buser; September 1, 2017]

• Whether retained counsel must be effective in K.S.A. 60-1507 hearing

State v. Phillip Cheatham, No. 113,799 (Shawnee)

Motion to withdraw plea
Meryl Carver-Allmond

[Affirmed; May 26, 2017; Luckert]

• Failure to allow withdrawal of no contest plea

Lapse of time not necessarily fatal to out-of-time appeal

Michelle A. Davis won in State v. Smith, No. 110,061 (Kan. August 5, 2016), obtaining remand to the district court for additional findings on Mr. Smith's motion to file an out-of-time appeal. Mr. Smith was convicted in 1993, when he was sixteen years old, after pleading no contest to several charges. The district court sentenced Mr. Smith to several consecutive life prison sentences.  Mr. Smith said he told his attorney to file an appeal, but that his attorney said to wait until after a 120-day call back (a potential modification process available at that time). But after the modification was denied, defense counsel never filed a notice of appeal. Approximately twenty years later, Mr. Smith filed a pro se notice of appeal and motion for out-of-time appeal. On a first remand to the district court, the only witness was Mr. Smith, who testified that he directed his attorney to filed an appeal, which he never did. Trial defense counsel passed away in 2009. On the first remand, the district court found that Mr. Smith waived his right to appeal based on the passage of time. Analyzing the third Ortiz exception, the KSC disagreed:

But requiring a defendant to establish the timeliness of his or her attempt to invoke the third Ortiz exception adds a step to the proper analysis set forth in [State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008], to-wit: (1) Whether the defendant told his or her counsel to appeal, but the attorney failed to file or perfect the appeal; and, (2) if so, the defendant will enjoy a presumption of prejudice but must show that he or she would have timely appealed, but for counsel's failure. 

Patton discussed the "let the matter rest" concept, but as a factor in the Flores-Ortega two-prong performance and prejudice analysis. The court found that Patton had not "let the matter rest," based on evidence in the record that showed Patton desired to pursue an appeal and had been attempting to do so, but for his counsel's nonperformance. In other words, as in Patton, Smith's dilatory conduct might be relevant to the credibility of his claim that he told his attorney to appeal or his claim that he would have proceeded with an appeal if his attorney had not failed him. But the lapse of time between Smith telling his attorney to appeal and Smith's attempt to use the third Ortiz exception to file an out-of-time appeal, standing alone, was not a threshold bar to the untimely appeal as a matter of law.

Because the district court had never made any real Oritz findings, the KSC remanded for a new hearing on whether Mr. Smith told his attorney to file an appeal. 

[Update: after remand, the district court found that Mr. Smith did not meet the third Ortiz exception. In State v. Smith, No. 116,968 (Kan. August 17, 2018), the KSC reversed and remanded for a new hearing before a different judge because the district court considered improper evidence.]

[Further update: after the second remand, the KSC affirmed the finding of the district court that Mr. Smith did not meet the third Ortiz exception. State v. Smith, No. 121,949 (Kan. March 12, 2021).]

Must know about a child to disregard substantial risk of injury to child

 Christina M. Kerls won in State v. Herndon, No. 112,479 (Kan. App. July 15, 2016), reversing a Neosho County aggravated endangerment of a child conviction. Mr. Herndon contended that he could not have acted recklessly with regard to a child because there was no evidence that he knew a child was in the back of a truck into which he was alleged to have discharged a firearm. The COA acknowledged the deferential standard of review, but agreed after review of the facts in the record:

It suffices to say that we simply find a dearth of evidence to support the notion that Herndon was aware of the child's presence in the truck. It is hard to imagine how Herndon consciously disregarded the risk to a child he had no reason to think was there.

 Further, under the standard for recklessness the risk to be avoided must be substantial. There is always the risk that shooting a .22 rifle at a moving vehicle could cause grave injury or death to an occupant of the vehicle. But under this statute there must be a substantial risk, which the defendant disregarded, that the vehicle had a child occupant. The defendant's actual knowledge of a child's presence would, of course, be sufficient to show a substantial risk. But circumstances establishing the strong likelihood of a child's presence would also satisfy the "substantial risk" component of the statute, so long as a child was, in fact, endangered.

Shooting a firearm in the direction of a child daycare center at 10 a.m. on a school day carries with it the substantial risk of injury to a child. But the same cannot be said if the shot is fired at a daycare center building at midnight. The chance of a child being 11 present at that hour is remote at best. In any event, the likelihood of a child being injured by a shot fired at midnight certainly would not be substantial so as to satisfy this element of the crime.

Herndon's conduct was certainly unjustifiable and a gross deviation from any reasonable standard of care. But there is no evidence that it was done in conscious disregard of a substantial risk of injury to a child occupying the truck.

Because there was insufficient evidence to support the charge, the COA reversed the conviction and sentence for aggravated endangerment of a child. The COA affirmed several remaining convictions.

[Update: the KSC denied the state's PR and the mandate issued on October 23, 2017.]

Possession of different drugs without a tax stamp is one offense

Lydia Krebs and Peter Maharry won in State v. Pribble, No. 108,915 (Kan. July 15, 2016), reversing a Sedgwick County no tax stamp conviction. The KSC considered whether a conviction for possession of marijuana with no tax stamp and a conviction for possession of methamphetamine with no tax stamp was the "same offense" for multiplicity purposes. After applying its precedent, the KSC concuded there was only one offense:

Viewing all of the statutory provisions together suggests that the legislature intended to impose a tax on the marijuana or controlled substances possessed by drug dealers and to make it a crime for those drug dealers to fail to evidence the payment of that drug tax with the appropriate stamps. Consequently, the clear purpose of K.S.A. 2010 Supp. 79-5201(c)'s definition of "dealer" is to differentiate between drug dealers and personal-use possessors of drugs, and, thereby, clarify who is a taxpayer under the act that can be subject to the criminal sanction of K.S.A. 79-5208. In that regard, the legislature's designation of more grams to be considered a marijuana dealer than that required to be a methamphetamine dealer has a basis in fact unrelated to establishing a unit of prosecution. Accordingly, we reject the proposition that K.S.A. 2010 Supp. 79- 5201(c) clearly indicates a legislative intent to make the possession of two separate drugs two separate units of prosecution under K.S.A. 79-5208.

Therefore, under the facts presented in this record, we hold that Pribble's possession of both marijuana and methamphetamine, at the same time and the same location, without the appropriate drug tax stamps affixed, without any proof that the drugs were acquired at different times, constituted a single crime that should not have been charged in two counts.

As a result, the KSC reversed one count of no tax stamp.

Stay agreement did not effectively waive right to jury trial

Washburn student intern Adam King and I won in State v. Stamps, No. 113,510 (Kan. App. July 15, 2016)(unpublished), obtaining a new trial in a Johnson County nonsupport prosecution. In November 2008, after being charged with criminal nonsupport, Mr. Stamps had entered into a stay agreement to work on paying the back child support, which included a stipulation of facts in the probable cause affidavit and a provision that "the defendant, after consultation with counsel, waives trial by jury." 

Several years later, the district court revoked the stay agreement finding that Mr. Stamps had failed to comply with its terms. After revocation of the agreement, the district court proceeded to convict Mr. Stamps after a bench trial on stipulated facts. The district court imposed a 6-month prison sentence and granted probation.

On appeal, Mr. Stamps argued that the district court had failed to obtain a valid jury trial waiver on the record. The COA applied KSC precedent (blogged about here) and agreed:

Where a jury trial waiver is in writing, Kansas caselaw "requires that the written waiver be after the defendant is 'advised by the court of his right to a jury trial.'" The mere form of a jury trial waiver alone does not ensure a court fully considered the facts and circumstances surrounding a defendant's waiver of his or her jury trial right, which is necessary in deciding whether a knowing and voluntary waiver occurred. There is nothing in the record here indicating that the district court made any attempt to advise Stamps of the nature and extent of his constitutional right to a jury trial prior to Stamps signing the stay agreement. 

The State also points to language in the stay agreement that Stamps "waives any constitutional right to confront the witnesses or evidence as a part of this stipulation of facts" and "agrees that the matter of determining guilt based upon these [sic] stipulated set of facts is to be considered by the court without any further evidence being presented or argument being made by either party." But the general waiver language does not indicate the court advised Stamps about the nature of his right to a trial by jury as opposed to a trial to the court. See [State v. Frye, 294 Kan. 364, 373, 277 P.3d 1091 (2012)] ("Pointedly, the document does not even hint that Frye may actually know what his 'right to a Jury Trial' may be or understand what it means to 'try the case to the Court.'"). Without such an understanding, the jury trial waiver cannot be voluntary and knowing.

In this case, the district court did not address Stamps at all regarding his right to a trial by jury at the hearing on the stay agreement, and the court only briefly addressed Stamps' attorney.

Because the jury trial waiver was not valid, the COA reversed the bench trial conviction and remanded for a new trial. 

[Update: the state filed a PR on August 15, 2016.]

[Further update: the KSC denied the state's PR and the COA mandate issued on February 24, 2017.]

September 2016 KSC docket

Here are the criminal cases on the KSC docket for September 12-16, 2016. 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 at the appellate court website and archived (here) if you would like to watch any of these arguments.

September 12--Monday--a.m.

In re Todd Ellison, No. 112,256 (Sedgwick)
SVPA state appeal
Michael P. Whalen

[Affirmed; Biles; December 9, 2016]

• District court correctly dismissed SVPA proceeding

Shannon Bogguess v. State, No. 111,299 (Sedgwick)

K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen

[Affirmed; Stegall; June 9, 2017]

• Failure to hold evidentiary hearing on IAC claim

September 13--Tuesday--a.m.

State v. Jack LaPointe, No. 112,019 (Johnson)
State appeal (petition for review)
Richard Ney

[Dismissed; Luckert; March 3, 2017]

• District court properly allowed DNA testing

State v. Brian Bailey, No. 112,888 (Johnson)

Motion to correct illegal sentence appeal
Catherine A. Zigtema

[Affirmed/Remanded; Stegall; May 19, 2017]

• Improper restitution award
• Failure to correct illegal sentence

State v. Maurice Stewart, No. 111,995 (Johnson)

Direct appeal; felony murder
Korey A. Kaul

[Affirmed; Johnson; April 28, 2017]

• Improper instruction regarding lesser-included offenses
• Improper instruction excluding self-defense as a matter of law
• Erroneous competency finding
• Improper admission of blood spatter evidence

September 14--Wednesday--a.m.

State v. Nicholas Corbin, No. 113,585 (Saline)
Sentencing appeal
Joanna Labastida

[Reversed/Remanded; Nuss; December 23, 2016]

• Failure to find defendant intellectually disabled

State v. Dane Deweese, No. 112,372 (Saline)
Direct appeal; first-degree premeditated murder
Kurt P. Kerns (brief), Melanie S. Morgan (brief and argue)

[Affirmed; Nuss; January 20, 2017]

• Failure to disclose exculpatory evidence

September 15--Thursday--a.m.

State v. William Holt, II, No. 113,990 (Shawnee)
Sentencing appeal
Meryl Carver-Allmond

[Affirmed; Biles; February 24, 2017]

• Improper restitution finding

State v. Casey Baker, No. 111,915 (Douglas)

Direct appeal; possession
Corrine E. Gunning

[Reversed/Remanded; Stegall; June 9, 2017]

• Failure to suppress evidence (Fourth Amendment)

September 16--Friday--a.m.

State v. Douglas Belt, No. 94,435 (Sedgwick)
Direct appeal; capital murder
Rebecca E. Woodman (brief), Sarah Ellen Johnson (brief and argue)

[Affirmed in part/Reversed in part; Beier; October 21, 2016]

• Multiplicity of capital murder and attempted rape
• Insufficient evidence
• Abatement of appeal on death of defendant

Plants require roots

 Caroline M. Zuschek won in State v. Holstead, No. 112,846 (Kan. App. April 8, 2016), reversing a Wyandotte County conviction for cultivation of marijuana. The COA had to decide whether marijuana clippings were "plants" as used in Kansas statute. The COA decided that "plants" require root formations:

And, even though Holsted had placed his clippings into a growing medium, that fact does not make his case unlike other cases. For example, in Edge, marijuana cuttings were found in a growing medium, saturated with a rooting hormone. Some of the cuttings had developed callus tissue, which is formed after a cutting is clipped from a mature plant and is the marker of the beginning of the development of a root. It is from this callus tissue that roots will come. But, the cuttings did not yet have any visible roots or root hairs. The court adopted the commonly accepted root test and held that those cuttings were not plants. .

The legislature set the minimum plant requirement at five. See K.S.A. 2015 Supp. 21-5701(c), K.S.A. 2015 Supp. 21-5705(c), (d)(7)(A). If defendants have only cultivated four plants, they can be punished for the possession of the plants under K.S.A. 2015 Supp. 21-5706, but they would not have a sufficiently large enough operation for a cultivation charge. The legislature emphasized the importance of properly counting the plants; the number of plants determines the severity of the crime. See K.S.A. 2015 Supp. 21-5705(d)(7).

By not defining the term "plants," it is presumed that the common, widely used definition was contemplated. There is a consensus among other courts that the common meaning of "plant" contemplates observable root formation. We share their view.

Here, the parties stipulated that Holsted's clippings had no root formation. Therefore, there was insufficient evidence that Holsted cultivated five marijuana plants in violation of K.S.A. 2012 Supp. 21-5705(c).

[Update: the state did not file a PR and the mandate issued on May 16, 2016]

Invited error doctrine does not apply to illegal sentence

Catherine A. Zigtema and Sarah Morrison Rapelye won in State v. Hankins, No. 109,123 (Kan. April 22, 2016), obtaining a new sentencing hearing in a Johnson County felony prosecution. On appeal, Mr. Hankins claimed that an Oklahoma deferred judgment should not be counted as a prior conviction. The COA had held that Mr. Hankins was precluded from making this argument under the invited error doctrine and also that he would lose on the merits. The KSC disagreed on both points.

On the procedural issue, the KSC applied recent precedent holding that "Kansas law is clear that a defendant can't agree to an illegal sentence." The KSC disagreed with the COA's distinction that the stipulation in this case was factual, which would be binding on the parties and court:

the stipulation of Hankins' attorney upon which the panel majority apparently relied was directed at a legal finding, not a factual one. After ascertaining that the parties had been provided an opportunity to look at the PSI, the district court recited the number of months' imprisonment within the presumptive gridbox for the base crime and the same information for the remaining nonbase crimes, before inquiring whether anyone disagreed with, or had anything to add to, the court's findings. The court did not ask if anyone disagreed with the existence of the convictions used to calculate the presumptive sentence; it asked if there was any disagreement with the computed presumptive sentence.

The computation of the presumptive term of imprisonment applicable to Hankins was a legal determination.

On the merits, the KSC distinguished the Oklahoma scheme from a deferred sentencing scheme:

The requirement for a judgment of guilt to trigger a "conviction" in Kansas is a critical point in our analysis because the Oklahoma deferred judgment statute specifically directs that an entry of judgment will not be entered for an offender who successfully completes a deferred judgment. The initial conditions are to be imposed "without entering a judgment of guilt." Then, upon successfully completing the deferred judgment, "the defendant shall be discharged without a court judgment of guilt." The State's argument that the journal entry in Hankins' case indicates that the district court adjudged Hankins guilty is simply unavailing. Such an action would have been statutorily prohibited, and we will not ascribe such unlawful conduct to the Oklahoma tribunal.

The KSC distinguished the instant case from precedents related to Missouri suspended sentencing scheme. The KSC held that the definition of "conviction" used in that case and noted that such reasoning actually supported a holding that the Oklahoma proceeding was not a judgment of guilt. So, as a result, the matter was remanded for a resentencing excluding the Oklahoma deferred judgment from criminal history.

May 2016 KSC docket

Here are the criminal cases on the KSC docket for May 2-5, 2016. 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 at the appellate court website and archived (here) if you would like to watch any of these arguments.

May 2--Monday--a.m.

State v. Kyle Carter, No. 112,269 (Sedgwick)
Direct appeal; first-degree premeditated murder
Samuel Schirer
[Affirmed; Beier; September 30, 2016]

• Prosecutorial misconduct
• Preliminary instruction on reasonable doubt
• Failure to give lesser-included offense instruction
• Improper aiding and abetting instruction

State v. Quartez Brown, No. 113,253 (Sedgwick)

Direct appeal; felony murder
Korey A. Kaul

[Affirmed; Luckert; October 28, 2016]

• Failure to substitute counsel

State v. Jimmy Netherland, No. 112,806 (Shawnee)

Direct appeal; felony murder
Gerald E. Wells
[Affirmed; Beier; September 30, 2016]

• Insufficient evidence
• Prosecutorial misconduct

May 3--Tuesday--a.m.

State v. Jose Solis, No. 111,556 (Johnson)
Direct appeal; premeditated first-degree murder
Carol Longenecker Schmidt
[Affirmed; Johnson; September 9, 2016]

• Improper admission of prior bad act evidence
• Failure to give limiting instruction
• Failure to give lesser-included offense instructions
• Improper reasonable doubt instruction

State v. Tony Schaefer, No. 109,915 (Shawnee)

Direct appeal (petition for review); motion to withdraw plea
Johnathan M. Grube (brief); Carol Longenecker Schmidt (argue)

[Affirmed; Johnson; December 23, 2016]

• Failure to allow withdrawal of plea
• Failure to inform defendant of possibility of civil commitment

State v. Joseph Mattox, No. 111,162 (Johnson)

Direct appeal; premeditated first-degree murder
Catherine A. Zigtema

[Affirmed/Vacated; Stegall; March 10, 2017]

• Improper imposition of hard-50 sentence
• Improper instructions on intent, premeditation, aiding and abetting, etc.
• Failure to accept plea to non-homicide charges
• Failure to suppress statements
• Improper admission of statements obtained during psychological exam

May 4--Wednesday--a.m.

State v. Antonio Brown, Sr., No. 111,166
Direct appeal; felony murder
Peter Maharry

[Affirmed; Biles; January 20, 2017]

• Failure to suppress statements
• Improper imposition of upward departure
• Failure to give lesser-included offense instructions
• Insufficient evidence of obstruction

State v. Michael Staten, No. 108,305 (Wyandotte)

Direct appeal (petition for review); aggravated battery
Rebecca L. Kurz (brief); Michael P. Whalen (argue)
[Affirmed; Rosen; August 12, 2016]

• Instruction on burden of proof for self defense
• Prosecutorial misconduct
• Failure to substitute counsel

State v. Troy Love, II, No. 112,611 (Saline)

Direct appeal; felony murder
Peter Maharry

[Affirmed; Biles; January 20, 2017]

• Improper admission of autopsy photos
• Improper exclusion of evidence of civil suit
• Prosecutorial misconduct
• Failure to give lesser-included offense instructions

State v. Deaarion Potts, No. 113,302 (Wyandotte)

Direct appeal; felony murder
Samuel Schirer
[Affirmed; Rosen; June 24, 2016]

• Insufficient evidence
• Failure to suppress statements
• Improper aiding and abetting instruction
• Improper certification for adult prosecution (Apprendi)

May 5--Thursday--a.m.

State v. Bryant Seba, No. 113,149 (Pratt)
Direct appeal; premeditated first-degree murder
Michelle A. Davis
[Affirmed; Luckert; September 30, 2016]

• Insufficient evidence
• Failure to give lesser-included offense instructions
• Improper definition of "intentionally"
• Failure to give instructions for imperfect self-defense
• Improper admission of gruesome photographs

State v. Tiofilio Rodriguez, No. 110,346 (Grant)
Direct appeal (petition for review); aggravated kidnapping
Randall L. Hodgkinson

[Affirmed in part/Vacated; Johnson; March 24, 2017]

• Defective complaint
• Improper classification of prior conviction

Aggravated burglary requires proof of presence at time of burglary

 Lydia Krebs and Peter Maharry won in State v. Daws, No. 108,716 (Kan. February 19, 2016), reversing a Wyandotte County aggravated burglary conviction. The state charged Mr. Daws with entering a building with intent to commit a theft while a human being was present. But the only evidence showed that no one was present in the building until after Mr. Daws had entered. The KSC majority held that there are different ways to commit burglary and the state is required to prove what it charges:

As charged and instructed in this case, aggravated burglary is defined as "without authority, entering into . . . any building . . . in which there is a human being with intent 11 to commit . . . theft . . . therein." . . . And because aggravated burglary is complete once unauthorized entry occurs, the Court of Appeals view impermissibly extends the crime until the burglar leaves or completes the ulterior felony. 

It is "a basic premise of Anglo-American criminal law that the physical conduct and state of mind must concur." 1 LaFave, Substantive Criminal Law § 6.3(a), p. 451 (2d ed. 2003) (discussing actus reus and mens rea). In the context of aggravated burglary, this idea is embodied in this court's holdings that "[t]o support a conviction for aggravated burglary, the intent to commit a felony and the unauthorized entering into or remaining within must at some point in time coexist." But the aggravated burglary statute's human presence element is not governed by this rule because it does not involve the required physical conduct (entering into) or the state of mind (intent to commit the ulterior crime). The human presence element is more aptly described as an attendant circumstance. See 1 LaFave, Subst. Crim. L. § 6.3(b). When the elements of a criminal statute include an attendant circumstance, that attendant circumstances must concur with the other elements. 1 LaFave, Subst. Crim. L. § 6.3(b) p. 12 455 ("With crimes which require physical conduct, mental fault, and attendant circumstances, the circumstances must concur with the conduct and fault."). To hold otherwise collapses the two means of committing aggravated burglary.

In light of the uncontroverted testimony that Daws spent a day inside the victim's home before the homeowner returned, the remaining within means of committing aggravated burglary was the appropriate charge. Since the jury was only instructed on the entering into means of committing aggravated robbery and the victim was not present when Daws entered the residence, we hold there was insufficient evidence to sustain the aggravated burglary conviction and reverse that conviction. This necessarily requires us to overrule Reed and its progeny as they relate to the crime of aggravated burglary when the defendant is only charged with unauthorized entering into a building or residence and another person is not present at that time.

Post-trial Stand Your Ground decision is an acquittal

 Patrick H. Dunn won in State v. Barlow, No. 108,830 (Kan. Feb. 19, 2016), affirming Judge Peterson's post-trial order dismissing attempted second-degree murder charges based on Kansas' Stand Your Ground law. The KSC first had to consider whether the post-trial order qualified as an acquittal, which would not be appealable by the state:

In this case, the Court of Appeals panel focused on what it believed to be the tardiness of the district judge's consideration of Stand-Your-Ground immunity. This focus on timing obscured the more basic question of whether the order underlying the appeal qualified as a judgment of acquittal. Again, the path taken by a district judge to arrive at such an acquittal order may be flawed, but, regardless, it is not subject to reversal on appeal. Reinstatement of a defendant's conviction is forbidden. In this case, there is no question that the second element necessary for an acquittal order is present: jeopardy had attached. Barlow's jury had been impaneled and sworn, had received evidence, had heard arguments, had deliberated, and had returned a verdict. This moves us to address the first element, whether the district judge's order resolved some or all of the factual elements of the offense charged. 

The district judge wrote that he found J.M.-M. to be "an extremely unreliable witness" who "committed perjury throughout his entire testimony." In contrast, the judge regarded Barlow as credible and wrote that "various points of his testimony were corroborated by other evidence." The district judge found that J.M.-M. was "at a minimum committing a sexual assault against [T.S.]" while she was unconscious due to intoxication, "but most likely was committing rape against her with his fingers . . . ." The district judge further determined that Barlow possessed a reasonable belief that J.M.-M. was raping T.S. Noting that Barlow had made multiple attempts to intervene physically before resorting to the retrieval and use of the revolver, the judge concluded that Barlow's use of force to stop the rape was reasonable. Ultimately, "by a preponderance of the evidence," the judge ruled that Barlow's version of events was true and that he was entitled to Stand-Your-Ground immunity.

Generally, a reference to "preponderance of the evidence" means "'evidence which shows a fact is more probably true than not true.'" And the district judge's finding that Barlow's version of events was more probably true than not true eliminated the possibility that the State could prove beyond a reasonable doubt that Barlow's use of force was not reasonable. See K.S.A. 2014 Supp. 21-5108(c) (defendant entitled to instruction on every affirmative defense supported by evidence; once defendant produces such evidence, "state has the burden of disproving the defense beyond a reasonable doubt"). This necessarily means the district judge found that the State could not meet its burden to prove Barlow's criminal culpability; the State's evidence was insufficient to support a conviction for attempted second-degree murder. This determination qualifies as a resolution of factual elements of the charged offense.

Given this resolution, and the unquestionable attachment of jeopardy, we have no hesitation in holding that the district judge's order qualified as a judgment of acquittal.

Because the district court's order was an acquittal, the KSC held that the COA did not have jurisdiction to reinstate a verdict. The KSC went on to hold (on a question reserved) that the district court could enter a post-trial acquittal based on Stand Your Ground:

May a district judge sua sponte grant Stand-Your-Ground immunity to a criminal defendant after a jury has returned a guilty verdict but before sentence on the conviction has been pronounced? The answer to this question is: Yes. A district judge may consider Stand-Your-Ground immunity sua sponte at any time before pronouncement of sentence.

No evidence of theft by deception

Washburn student intern Wes Weber and I won in State v. Boor, No. 112,539 (Kan. App. January 8, 2016)(unpublished), reversing a Sedgwick County theft conviction. Ms. Boor had been charged with theft by deception, but because Ms. Boor worked for the purported victim business as a bookkeeper, the COA agreed that the evidence could not support a conviction for theft under the charged theory:

Here, there was similarly no deception in Boor obtaining her position as bookkeeper. Instead, when viewed through the lens of [State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990)] analogy, Boor was the fox who the farmer hired to run the chicken house. Once employed as a bookkeeper, Boor used her position to steal money from SMG (when viewing the facts of this case in the light most favorable to the State), just as the fox used its position to steal the eggs. This is embezzlement.

Because the state did not present evidence to support the charged crime, the COA reversed the conviction.

[Update: the state did not file a PR and the mandate issued on February 18, 2016.]

February-March 2016 KSC docket

Here are the criminal cases on the KSC docket for February 29-March 3, 2016. 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 at the appellate court website and archived (here) if you would like to watch any of these arguments.

February 29--Monday--a.m.

State v. Keith Ritz, No. 112,069 (Sedgwick)
Direct appeal; felony murder
Heather R. Cessna

[Affirmed; Beier; March 3, 2017]

• Failure to sever charges
• Failure to give lesser-included offense instructions

State v. Javier Rizo, No. 112,824 (Sedgwick)
Direct appeal; felony murder
Sarah Ellen Johnson
[Affd/Dsmd; Johnson; August 12, 2016]

• Improper jury trial waiver
• Failure to grant downward durational departure

State v. Amoneo Lee, No. 113,562 (Sedgwick)
State appeal
Richard Ney
[Reversed; Rosen; April 29, 2016]

• Whether district court properly granted motion to correct illegal sentence under Alleyne

State v. Jerry Thach, No. 112,231 (Sedgwick)
Direct appeal; felony murder
Michael P. Whalen
[Affirmed; Luckert; September 9, 2016]

• Insufficient evidence of underlying felony

March 1--Tuesday--a.m.

State v. Jordan Mullen, No. 110,468 (Johnson)
Direct appeal (petition for review); possession with intent
Joanna Labastida
[Affirmed; Rosen; April 22, 2016]

• Failure to grant motion to suppress
• Deficient search warrant affidavit
• Failure to properly advise of right to jury trial

State v. Ralph Corey, No. 110,149 (Franklin)
Direct appeal (petition for review); aggravated kidnapping
Lydia Krebs (brief); Peter Maharry (petition for review & argue)
[Affirmed; Biles; July 1, 2016]

• Jury misconduct (juror comment during deliberations)
• Denial of right to be present during readback
• Improper jury instruction
• Improper prosecutorial argument

March 3--Thursday--a.m.

State v. William Shank, No. 112,982 (Thomas)
Sentencing appeal
Peter Maharry
[Affirmed; Nuss; April 15, 2016]

• Improper consecutive sentences
• Unworkable restitution order

State v. Christian McCormick, No. 109,985 (Sumner)
Direct appeal (petition for review); rape
Christina M. Kerls
[Affd/Rvd; Beier; September 9, 2016]

• Improper admission of evidence of another bad act
• Improper sentence to more than minimum
• Failure to grant downward departure

State v. Elton Sherman, No. 113,105 (Crawford)
Direct appeal; felony murder
Meryl B. Carver-Allmond
[Affirmed; Stegall; September 9, 2016]

• Improper prosecutorial argument (defining reasonable doubt)
• Failure to grant mistrial
• Speedy trial (due process) violation

Search incident to arrest nor inevitable discovery justified search of wallet left on car

Shannon Crane won in State v. Reed, No. 113,576 (Kan. App. Dec. 18, 2015), affirming Judge Rose's suppression order in a Reno County drug prosecution. Judge Rose found the following facts:

Defendant was handcuffed and at the rear of his vehicle when his wallet was first searched. The search of the wallet was not justified by safety reasons or as an effort to safeguard evidence of the offense of driving while suspended. The officers were in possession of defendant's driver's license, the only evidence relevant to the crime for which defendant was being arrested. There was nothing protruding from the wallet suggesting any type of safety concern. Officer Carey testified it is police department policy to search a person's effects before placing them in a patrol car. The court assumes this policy is for safety reasons. Here though, defendant was separated from his wallet. Defendant apparently was not asked what he would like done with his wallet, if anything. If officers were concerned about security of defendant's property there was a passenger who arguably could have assumed custody of the wallet. There was no indication the passenger was a minor child or under the influence of drugs or otherwise incapacitated.

The search was not authorized as incident to arrest. The inevitable discovery doctrine does not authorize the admission of the evidence because the wallet was not lawfully seized.

The COA agreed that the search incident arrest doctrine did not apply:

If Reed's wallet had been in his pocket or even in his hand when he was arrested, the search in this case clearly would have been constitutional as a search incident to arrest. But here, Reed placed his wallet on the roof of his car prior to his arrest. Before officers searched Reed's wallet, Lahaan arrested Reed, placed him in the back of the patrol car, and continued to complete the investigation and interview other people at the scene, including Reed's passenger. By the time Carey searched Reed's wallet, there was no possibility that Reed could access the wallet. Therefore, under Gant, the justifications of the search incident to arrest exception were absent and the exception did not apply. The State's undeveloped argument that Gant is inapplicable because it concerned an automobile is unpersuasive in light of the language quoted above from Gant.

The COA also agreed that adopting the state's argument would constitute a huge expansion of the inevitable discovery rule:

The State argues that it would have been unreasonable to expect officers to leave the wallet on the roof of the car. The State further asserts that "[i]f an item is personal in nature, plainly connected to the suspect, and left out in the open, law enforcement should be able to lawfully collect the item. Once the items are lawfully with law enforcement, they may be searched. [Citation omitted.]" If the court accepts the State's assertion, it is essentially saying that officers may search any item an arrestee is "plainly connected to" and which is "left out in the open" without further requirement from the Fourth Amendment. This would run afoul to the Fourth Amendment's premise that warrantless seizures are impermissible without an established exception to the warrant requirement.

Finally, the COA rejected the application of the good-faith rule:

The State contends that the officers acted "with an objectively reasonable good-faith belief that their conduct was lawful." But even if Carey's motivation for searching Reed's wallet may have been benign, the fact remains that he violated Reed's constitutional rights by searching his wallet without a warrant and without an applicable exception to the warrant requirement. This case presents a situation where the exclusionary rule should be applied in order to deter Carey and other law enforcement officers from making the same type of mistake in the future. Thus, the district court correctly applied the exclusionary rule to suppress the evidence found in Reed's wallet.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]
 

Aiding and abetting instruction given during jury deliberations is clear error

Rick Kittel won in State v. Hover, No. 113,214 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a new trial in a Reno County aggravated battery prosecution.  Ms. Hover argued that the district court's improperly giving an aiding-and-abetting instruction in response to a jury question. During deliberations, the jury asked "If we determine that the defendant was guilty of battery, does she share responsibility for all the harm that was done[?]" Over defense objections, the district court gave a pattern instruction for aiding-and-abetting. The COA held that the instruction was legally inappropriate:

Hover's defense was that the State had failed to prove its case. Hover pointed out the variances in the witnesses' trial testimony and attempted to undermine the State's witnesses' credibility. Moreover, Hover argued that her hemophilia would have resulted in bruises on her hands had she been fighting, but she had no bruises. Hover offered the jury an alternative explanation of the fight: that Kelsie and Renae were the ones who hit Spencer and Hover was trying to break up the fight.

We find that the aiding and abetting instruction was not legally appropriate for the simple reason that neither party asserted an aiding and abetting theory during the trial. Moreover, Hover argues that the instruction was legally inappropriate because giving it violated her constitutional right to present a defense—she was unable to present a defense to or argue against the theory that she was guilty as an aider and abettor since that theory was not introduced until after the close of evidence and argument.

On reversibility, the COA held that the error was clear:

This case essentially boiled down to a credibility contest between witnesses supporting the State's theory—that Hover battered Spencer—and witnesses supporting the defense theory—that Hover was present but did not touch Spencer. By erroneously introducing a new theory of culpability during deliberation, without supplemental argument or presentation of evidence, the district court fundamentally changed the grounds on which the jury could convict Hover. We cannot be sure that the erroneous instruction on aiding and abetting caused the jury's verdict, but there is a real possibility that it did so. Stated differently, after carefully reviewing the entire record, we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Thus, we conclude the supplemental jury instruction on aiding and abetting was clearly erroneous.

As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]

Cannot detain while getting a search warrant without more

Kimberly Streit Vogelsberg won in State v. Daugherty, No. 110,131 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a suppression order in a Butler County drug prosecution. Ms Daugherty argued that officers obtained statements from her during an illegal detention and that the tainted evidence invalidated a search warrant predicated on those statements, which in turn led to incriminating evidence.  The state relied on cases that stood for the proposition that a person can be detained during execution of a search warrant. But the COA held that Ms. Daugherty's case was easily distinguishable:

In Daugherty's case, of course, officers did not have a search warrant when they detained her. Given the cases' strong emphasis on the search warrant to justify a seizure, Summers and Mena do not control the result here.

The COA went on, then, to consider whether a person can be detained while officers get a search warrant.  Ultimately, the COA followed a Fourth Circuit case that held a seizure unreasonable where there was not warrant, no probable cause--or even reasonable suspicion--of criminal activity, and no reasonable suspicion of destruction or concealment of evidence. As a result, the COA held that Ms. Daugherty's detention was similarly unreasonable:

police in our case did not have probable cause to believe that Daugherty had done or would do anything wrong. Nor could Daugherty have destroyed evidence that was in the room; officers were preventing anyone from entering. No officers suggested that Daugherty represented a threat to their safety; the officers didn't handcuff or restrain her while they kept her in the motel lobby. She was seized without being given an option to leave, and the officers did not have a search warrant (or the imminent prospect of one) at the time. We conclude that her seizure in these circumstances violated her right to be free from unreasonable seizure under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights.

The COA also rejected the state's argument that the reading of Miranda rights during the illegal detention reduced the effect of the illegal seizure. The COA held that, while giving of Miranda rights may be relevant, it did not overcome the fact that the statements were made during the illegal detention and immediately used to get a search warrant.

Finally, the COA held that the state's speculative theory regarding inevitable discovery was not sufficiently litigated at the district court and therefore remanded for further findings.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]

Insufficient search warrant affidavit leads to suppression of residential search

Washburn student intern Michelle David and I won in State v. Savage, No. 112,882 (Kan. App. Dec. 11, 2015)(unpublished), obtaining a suppression order in a Douglas County drug prosecution. Police had obtained a search warrant to search Mr. Savage's home based on a report from a neighbor, a trash pull, and an old conviction for drug possession. The COA held that there was insufficient evidence presented in the affidavit to support the warrant. The COA agreed with the district court that the remote conviction, by itself, was of little value in the probable cause calculus. Additionally, the non-specific report from the neighbor was not particularly probative. It also held that items found in the trash pull did not establish a sufficient contemporaneous connection to the home:

The affidavit at issue here clearly established a nexus between the garbage retrieved and the residence to be searched. The affidavit states that two trash bags were pulled from in front of Savage's home, on the same day, one yellow bag and one white bag. In the white bag were 14 pieces of mail along with two other documents addressed to Savage at the address to be searched, as well as mail addressed to two other individuals at the same address. Furthermore, an unknown quantity of marijuana mixed with coffee grounds and an opened package of Zig-Zag rolling papers were found. In addition, the trash pull was done the day before the warrant was requested, so the information was not stale. Nevertheless, we are compelled to find that the items recovered from the trash pull fail to establish a fair probability that further evidence of the crime of possession of marijuana would be found in Savage's home.

Even though the affiant requested a search warrant "to complete a more thorough investigation of possession of marijuana," a close examination of the evidence reveals that there is insufficient evidence to suggest a fair probability that marijuana would be found in Savage's house on July 2. The only evidence of criminal activity is that someone who was in the house possessed marijuana and unused rolling papers at some unknown time and subsequently discarded both. The amount of marijuana found is not delineated in the affidavit, but the fact that it was mixed with coffee grounds would suggest it was a small amount, consistent with individual use and not distribution. We do note that no partially burned or used rolling papers were found. We acknowledge that the possession of any amount of a controlled substance, even if it is not measurable or usable, is a crime in Kansas. However, the question is whether marijuana and unopened rolling papers found in a trash bag established probable cause to believe that contraband or evidence of a crime would be found in the residence. Neither party suggests that any criminal charges could be pursued merely for the marijuana found in the trash bag. It is unclear when the past use occurred, when the garbage was removed from the house or even when it was scheduled to be picked up. Even assuming weekly garbage collection, the contraband may well have been evidence of marijuana use several days prior to the examination of the garbage.

So, in totality, even giving appropriate deference to the magistrate, the COA held that the affidavit was lacking ("not even close"). Finally, the state had not argued the good-faith exception to the trial court and had not asserted any reasons for allowing that issue to be raised on appeal or the first time. As a result, the COA ordered that the evidence found during the search of Mr. Savage's home be suppressed.

[Update: the state did not file a PR and the mandate issued on January 25, 2016.]