Friday, July 28, 2017

September 2017 KSC Docket

Here are the criminal cases on the KSC docket for September 11-14, 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.

September 11--Monday--a.m.

State v. Roy Wetrich, No. 112,361 (Johnson)
Direct appeal (petition for review); Kidnapping
Korey A. Kaul
[Sentence vacated; Johnson; March 9, 2018]

  • Improper classification of prior conviction
State v. Randy Sturgis, No. 112,544 (Sedgwick)
Direct appeal (petition for review); Criminal possession of firearm
Samuel D. Schirer
[Affirmed/Vacated; Johnson; March 9, 2018]
  • Prosecutorial error (closing argument)
  • Improper classification of prior conviction
State v. Charles Moore, No. 113,545 (Sedgwick)
Sentencing appeal (petition for review)
Corrine E. Gunning
[Vacated; Johnson; March 9, 2018]
  • Improper classification of prior conviction
State v. Derrick Buell, No. 113,881 (Shawnee)
Sentencing appeal (petition for review)
Patrick H. Dunn
[Vacated; Johnson; March 9, 2018]
  • Improper classification of prior conviction

September 12--Tuesday--a.m.

State v. Osi McBride, No. 112,277 (Shawnee)
Direct appeal (petition for review); Kidnapping
Carol Longenecker Schmidt
[Reversed/remanded; Biles; December 1, 2017]

  • Misstatement of law re: victim credibility not harmless
State v. Christopher Ward, No. 111,640 (Johnson)
Direct appeal (petition for review); Theft/Making false writing
Randall L. Hodgkinson
[Reversed; Beier; January 12, 2018]
  • Insufficient evidence of theft by deception
  • Insufficient evidence of making a false writing
State v. Aaron Sayler, No. 110,048 (Kingman)
Direct appeal (petition for review); Failure to register
Rick Kittel
[Affirmed; Biles; October 27, 2017]
  • Insufficient charging document
  • Improper jury instruction re element of failure to register

September 13--Wednesday--a.m.

Vivian Mundy v. State, No. 112,131 (Lyon)
K.S.A. 60-1507 appeal (petition for review)
Kristin Patty
[Affirmed; Luckert; January 19, 2018]
  • Whether defendant "in custody" when released from probation
  • Ineffective assistance of postconviction counsel
State v. Marcus Butler, No. 115,604 (Wyandotte)
Direct appeal; First-degree felony murder/'conspiracy to commit aggravated robbrery
Kai Tate Mann
[Affirmed; Stegall; April 27, 2018]
  • Improper conspiracy instruction
  • Insufficient evidence of overt act
  • Ineffective assistance of counsel
  • Improper admission of prior bad acts evidence
  • Failure to give limiting instruction
  • Prosecutorial error
State v. Alfred Lehman, No. 112,500 (Sedgwick)
Sentencing appeal (petition for review)
Ryan Eddinger
[Reversed/Vacated; Johnson; September 28, 2018]
  • Extension of post-release period violated Double Jeopardy Clause
State v. Ruiz-Ascencio, No. 115,343 (Lyon)
Direct appeal; First-degree premeditated murder
Vincent Rivera
[Affirmed; Rosen; December 15, 2017]
  • Failure to give voluntary manslaughter instruction

September 14--Thursday--a.m.

State v. Gregory George, No. 112,224 (Leavenworth)
Motion for DNA testing (petition for review)
Christina M. Kerls
[Reversed/Remanded; Nuss; June 8, 2018]

  • Improper denial of DNA testing of hairs found at crime scene
State v. Daron Ingham, No. 111,444 (Reno)
Direct appeal (petition for review); Possession of commercial explosive
Randall L. Hodgkinson
[Affirmed; Rosen; November 30, 2018]
  • Improper admission of inflammatory words as evidence
  • Improper admission of sheriff as lay witness
  • Improper jury instruction defining commercial explosives
  • Failure to give definition of "consumer firework"

Marijuana not necessarily contraband in jail

Michelle A. Davis won in State v. Taylor, No. 114,779 (Kan. App. July 21, 2017), obtaining a reversal of Johnson County theft and trafficking in contraband convictions. Police arrested Mr. Taylor after a traffic accident and during a search of his car found two loaded handguns. A record check showed that one of the guns had been reported as stolen 14 to 20 months earlier. When booking Mr. Taylor into the jail, officers found a baggie of marijuana in one of his shoes. The state charged Mr. Taylor with theft of the gun and trafficking in contraband for introducing marijuana into the Johnson County Jail.

With regard to the theft conviction, the COA first found that the prosecutor had made improper and prejudicial comments related to the law of theft that required at least a new trial. But the COA went on to consider whether sufficient evidence supported the conviction and allowed a new trial. [n.a. This is an interesting way to write the appellate opinion. The COA could also have just ruled on the sufficiency issue, which would have rendered the prosecutorial error issue moot.] 

The COA noted that the state charged that Mr. Taylor obtained control over the gun with intent to permanently deprive the owner. The COA recognized precedent that had held that possession of recently stolen property without a satisfactory explanation can support a theft conviction. But in this case, the COA held that the original taking was not recent:

To conclude, when the only evidence supporting a defendant's theft conviction is the possession of stolen property, our Supreme Court has held that such convictions may be upheld based on possession alone if the defendant provides an unsatisfactory explanation about why he or she has the property and the property was recently stolen. Here, despite Taylor's unsatisfactory explanation, the handgun at issue had been stolen from Brown's house some 14 to 20 months earlier, which is too remote in time to be recent under [State v. Bamberger, 210 Kan. 508, 502 P.2d 760 (1972)]. Therefore, even when considered in the light most favorable to the State, based on our Supreme Court precedent, there was insufficient evidence to support that Taylor knew the handgun was stolen and therefore he intended to permanently deprive Brown of the handgun.

The COA also analyzed prior KSC case law regarding notice under the trafficking in a contraband statute. In particular, the COA noted that the statute purports to prohibit trafficking in "any item without the consent of the administrator." The KSC had rejected a claim that this provision was facially unconstitutional so long as it was implemented in a way that was consistent with Due Process, including notice: "Administrators of correctional facilities must provide persons of common knowledge adequate warning of what conduct is prohibited for two reasons: to provide fair notice and to safeguard against arbitrary and discriminatory enforcement." Applying this test to Mr. Taylor's prosecution, the COA held that the conviction for trafficking was unconstitutional as applied to him, rejecting the state's claim that controlled substances are per se contraband:

the actual language of the Kansas trafficking in contraband statute, which does not define what constitutes contraband outside of stating that contraband is "any item" brought into a correctional facility "without the consent of the administrator," controls the analysis for notice requirements. In [State v. Watson, 273 Kan. 426, 44 P.3d 357 (2002)], our Supreme Court explained that while it was constitutionally permissible for the legislature to vest administrators "with the authority of determining what items constituted contraband," the "any item" language of the trafficking in contraband statute did not provide notice to ordinary people what conduct would constitute a crime. As a result, the Watson court held that for the trafficking in contraband statute to be applied in a constitutionally permissible manner, administrators must provide people entering a correctional institution notice of what conduct they have deemed prohibited under the trafficking in contraband statute. Without making any exceptions regarding the nature of the items deemed contraband, our Supreme Court held that people are entitled to adequate notice of what items constitute contraband. This would give people adequate notice they could face criminal charges by bringing those items into the correctional institution. The individualized notice rectifies the fact notice is otherwise lacking in the trafficking in contraband statute. Thus, under the Watson court's construction, the trafficking in contraband statute could lawfully prohibit the introduction or attempted introduction of contraband from coming within a correctional facility only if the correctional facility's administrator has given notice of what items are forbidden. As a result, Taylor was entitled to notice. Here, however, the facility's administrator failed to do so.

Because Mr. Taylor was not provided adequate notice, the COA reversed the trafficking conviction. The COA also parenthetically noted that Mr. Taylor had been entitled to an instruction on notice.

[Update: the state did not file a PR and the mandate issued on July 31, 2017.]

Thursday, July 27, 2017

Inventory search requires standardized criteria or established routine

Corrine E. Gunning won in State v. Baker, No. 111,915 (Kan. June 9, 2017), reversing a Douglas County drug conviction. An officer seized and searched Mr. Baker's backpack when he arrested Mr. Baker for outstanding warrants, finding drug evidence.  The state asserted that the warrantless search was proper as an inventory search. The KSC agreed that seizure of the backpack was reasonable, but held that the state failed to show--by a preponderance of evidence--an established inventory routine that would have inevitably led to opening containers in the backpack where the drug evidence was found:

The Wells [Florida v. Wells, 495 U.S. 1 (1990)] rule applies here—standardized criteria or an established routine must regulate the opening of containers found during inventory searches. Opening all containers, no containers, or opening only those containers "whose contents officers determine they are unable to ascertain from examining the containers' exteriors" are all constitutionally permissible practices so long as they are standardized and well established. . A written policy undoubtedly has the advantage of providing certainty as to the established practices, but it is not required.

 However, producing no evidence of a policy with respect to the opening of containers—as occurred here—does not pass constitutional muster. 

We find nothing in the record before us to establish that the search which occurred here was anything other than general rummaging. Consequently, we hold the State did not prove by a preponderance of the evidence that the contraband would have been inevitably discovered through a valid inventory search of Baker's backpack. Therefore, the district court erred in denying Baker's motion to suppress.

As a result, the conviction was reversed and the matter remanded.

Saturday, July 15, 2017

Dog sniff improperly extended pretextual stop

Clayton J. Perkins won in State v. Lewis, No. 115,285 (Kan. App. June 16, 2017), obtaining reversal and remand in a Sedgwick County possession prosecution. The case stemmed from a pretextual car stop and a dog sniff of the car during the stop. Mr. Lewis argued thaqt the officers unreasonably prolonged the stop to facilitate the dog sniff and that once the officers searched the location where the dog hit finding nothing, they did not have probable cause to search the rest of the car. The COA rejected the state's claim that officers had reasonable suspicion to extend the traffic stop, citing problems with a uncorroborated confidential informant's tip. The COA also noted that the district court, in contractiction to the state's argument, found that the dog sniff occurred after the car stop was completed: 

The State has attempted to alter the trial court's finding that the traffic investigation had been completed when Deputy Powell and PSD Riggs arrived. The State contends that Officer Kampling and Lieutenant Mears were still waiting to hear back from "the on-call person" about the nature of Lewis' federal parole status when Deputy Powell and PSD Riggs arrived. It is true that in its order, the trial court found that Officer Kampling had called "the on-call person" to understand the nature of Lewis' federal parole, but Officer Kampling never heard back from the on-call person. Despite making this finding, however, the trial court still concluded that Officer Kampling had completed the traffic investigation when Deputy Powell and PSD Riggs arrived. This clearly means that the trial court did not deem a response from the on-call person about Lewis' federal parole status necessary to complete the traffic investigation. Additionally, this conclusion is grounded in law as the elements of a routine traffic stop include only a request for an individual's license and registration, running a computer check, and issuing the citation.

To repeat, it is clear that the trial court determined that Officer Kampling's traffic investigation had been completed when the K-9 unit arrived.

The COA went on to hold that this finding was supported by substantial competent evidence and, therefore, that the stop had been extended without reasonable suspicion. The COA clarified that making Mr. Lewis get out of the car to facilitate safely conducting the dog sniff was improperly prolonging the stop:

Here, Officer Kampling and Lieutenant Mears testified that after completing the warrants check and the ticket, they made Lewis exit his car so Deputy Powell and PSD Riggs would be safe during the dog sniff. Seemingly, if Officer Kampling and Lieutenant Mears wanted to have Lewis exit his car so Deputy Powell and PSD Riggs would be safe during the dog sniff, to comply with [Rodriguez v. United States, 125 S.Ct. 1609 (2015)], Officer Kampling and Lieutenant Mears 24 must have done so in a manner that did not add time to Lewis' traffic stop. For instance, Lieutenant Mears could have made Lewis exit his car while Officer Kampling was running a computer check and writing the ticket. Yet, this was not what happened. Therefore, under the United States Supreme Court's holding in Rodriguez, Officer Kampling and Lieutenant Mears' actions constituted a detour from the mission of the traffic stop that resulted in unreasonably prolonging the stop for the purpose of conducting the dog sniff. 

As a result, the COA reversed the conviction and the case was remanded with directions to grant the motion to suppress.

[Update: the state filed a petition for review on July 14, 2017.]

[Further update: the KSC denied the state's petition for review and the mandate issued on January 29, 2018.]