Skip rule isn't a rule

Michelle A. Davis won in State v. Barrett, No. 113,767 (Kan. June 7, 2019), obtaining a new trial in a Riley County reckless second-degree murder prosecution. The primary issue on appeal revolved around the district court's denial of a requested self-defense voluntary manslaughter lesser-included offense instruction. The state initially charged Mr. Barrett with intentional second-degree murder, but the jury found Mr. Barrett guilty of reckless second-degree murder. The COA majority held that the district court should have given the voluntary manslaughter instruction, but held that it was harmless under the "skip rule." The KSC clarified that the "skip rule" is not an automatic bar to reversal but just part of the regular harmless error test:

Originally, we described the skip rule this way: '"When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.''' But in recent years, we clarified that the skip rule is not, in fact, a hard and fast rule. Instead, it is "'simply a logical deduction that may be drawn from jury verdicts in certain cases.'"  Moreover, we cautioned courts to make this deduction only where it "reasonably (as opposed to mechanically) applies."

. . . .

But the skip rule is not a replacement for our longstanding harmlessness tests. And it is not an automatic harmlessness pass. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be 13 considered as part of the applicable harmlessness test. In her dissent, Judge Arnold-Burger traced the history of the skip rule and correctly noted that we have often discussed the rule along with finding the evidence was insufficient to support the disputed instruction. We clarify today that for a jury instruction challenge, the touchstone of reversibility is the applicable harmlessness test. To the extent prior decisions have suggested otherwise, we provide the necessary corrective today. 

Moreover, the skip rule is not amenable to mechanical (or mathematical) application because—as jury nullification and inconsistent verdicts suggest—juries can play a mitigating role in complex cases, such as this. As Judge Arnold-Burger astutely observed, an imperfect self-defense voluntary manslaughter instruction would have served as an alternative to the mental disease or defect defense, and the evidence could have reasonably supported either theory. In other words, on the spectrum from an intentional second-degree murder verdict to a mental disease or defect acquittal, an imperfect self-defense voluntary manslaughter verdict would have fallen somewhere in the middle. In that scenario, the jury could have reasonably concluded that Barrett's mental illness affected his intent but did not negate his culpable mental state entirely.

Applying the proper test, the KSC held that the state failed to prove the error was harmless and reversed for a new trial.

I especially note the note that "as jury nullification and inconsistent verdicts suggest--juries can play a mitigating role . . ."  It is interesting to think about whether an appellate court can discern whether a particular case would show circumstances that might lead to nullification and give effect that observation.

Officer immediately telling person to open their hand is not a voluntary encounter

Randall L. Hodgkinson won in State v. Andrade-Reyes, No. 115,044 (Kan. June 7, 2019), obtaining reversal and remand in a Johnson County drug possession prosecution.  One night, Johnson County bike officers say some people sitting in a car in an apartment complex parking lot and approached them. An officer thought she saw Mr. Andrade-Reyes reach toward the floorboard and that when confronted, thought Mr. Andrade-Reyes was sitting upright with hands tightly clenched. The officer directed Mr. Andrade-Reyes to open his hand and a bag dropped, which was later determined to contain cocaine. 

The district court held that the encounter was voluntary and therefore, denied Mr. Andrade-Reyes' motion to suppress. Alternatively, the district court held that the officer's actions were justified because of "odd" behavior and for "officer safety."

The KSC held that the encounter was not voluntary: 

Here, some factors suggest the officers seized Andrade-Reyes and others do not. As the Court of Appeals noted, the officers did not display a weapon, block the vehicle with the bicycles, activate the bicycles' emergency lights, or act in a threatening manner. These factors were weighty enough in the district court's and the Court of Appeals panel's assessment for both courts to conclude the encounter was voluntary. 

On the other hand, the officers approached the vehicle late at night in a dark area of the parking lot. The car was legally parked. There were no bystanders. Officer Larson did not introduce herself or state her reason for approaching the vehicle. Nor did she indicate Andrade-Reyes was free to leave or to refuse to answer questions. Instead, with the beam of her flashlight shining into the car, she immediately began asking Andrade-Reyes what was in his hands. Significantly, she did not take Andrade-Reyes' silence or lack of a physical response as an indication he did not wish to interact with the officers. Instead, according to the district court's findings, her voice became "nervous" and she persisted in asking him what was in his hands until he opened them. Although we do not have the body camera footage available to us, at the suppression hearing, the State seemingly quoted from it, stating that Officer Larson asked: "What's in your hand? What's in your hand? Open your hand." In other words, Officer Larson commanded or ordered Andrade-Reyes to open his hand. Further, although the officers did not activate their emergency lights or park their bicycles behind the vehicle, they stood near the doors of the car—one officer on each side. Andrade-Reyes, as a passenger, had no control over moving the car itself. These factors are much like—and even stronger indications of a seizure than—those in [State v. Williams, 297 Kan. 370, 300 P.3d 1072 (2013)] where we held a detention had occurred. 

The KSC held that the fact that the officers in this case did not activate their emergency lights was not weighty late at night upon immediate police questioning in an isolated location. In particular, the KSC held that Mr. Andrade-Reyes' reaction (or lack thereof) showed that the encounter was not voluntary:

Here, however, Andrade-Reyes did not respond. Officer Larson testified that when she asked Andrade-Reyes what was in his hands "[h]e just stayed there with his hands clenched just looking at me and wouldn't move." Rather than accepting that he had the right not to consent to a continuation of the encounter, she repeatedly asked her question and eventually issued a command. Even though Officer Larson spoke in a normal voice and was not loud, rude, or intimidating, her demeanor does not negate her persistence or her command to Andrade-Reyes to open his hands.

The KSC also held that the officer's lacked reasonable suspicion to detain Mr. Andrade-Reyes:

Similarly, Officer Larson and Officer Gross did not testify to knowing of any recent criminal activity and the vehicle was legally parked. The fact the encounter occurred late at night in a high-crime area is not indicative of criminal activity, nor is Andrade-Reyes appearing startled and reaching toward the floorboard. Under the totality of the circumstances, the officers did not have reasonable suspicion to detain Andrade-Reyes. He thus was subject to an unlawful seizure that tainted the subsequent discovery of the white substance. Accordingly, the evidence should have been suppressed unless another basis exists for allowing the questioning and the search.

Finally, the KSC rejected any possible claim of generalized officer safety as a basis for detention in this case (if it could be a justification in any case absent reasonable suspicion of a crime). As a result, the KSC reversed and remanded with directions to suppress the drug evidence.

Church sacristy is not a building or other structure for burglary

Patrick H. Dunn won in State v. Glover, No. 120,098 (Kan. App. June 7, 2019), affirming Judge Mott's dismissal of Sumner County burglary charges. The state alleged that Mr. Glover entered an unlocked Catholic church and entered the locked sacristy where he stole items from a locked cabinet. The sacristy is a room that is normally locked and located within the church, while the church itself was unlocked and open to the public.

Judge Mott dismissed the charges finding that the state did not prove that Mr. Glover entered the building without authorization. The state argued that Mr. Glover's entry in the sacristy constituted entry into a building or other structure that met the requirements of the burglary statute. After reviewing extensive case history in relation to the definition of "building or other structure," the COA agreed with Judge Mott:

First, even if we rely on previous caselaw focusing on whether someone is leasing a subpart of a building Glover could not be guilty of a burglary. Like the storeroom in [State v. Hall, 270 Kan. 194, 14 P.3d 404 (2000)], the sacristy was only owned by the church. It was not leased out to another individual or entity. See 270 Kan. at 202. Glover was authorized to enter the church and the sacristy was solely owned by the church. 

Second, we find that the plain language of the statute requires an unauthorized entry into a "building . . . or other structure." K.S.A. 2018 Supp. 21-5807(a)(2). A room is not a building or structure under a common understanding of either word. See Webster's New World College Dictionary 1262 (5th ed. 2014) ("room" is "a space within a building enclosed by walls or separated from other similar spaces by walls or partitions"); Webster's New World College Dictionary 1440 (5th ed. 2014) ("structure" is "something built or constructed, as a building or dam"); Webster's New World College Dictionary 195 (5th ed. 2014) ("building" is "anything that is built with walls and a roof, as a house or factory; structure"). The sacristy was nothing more than a room within the church building. Whether a room inside a building is locked does not impact whether entry into the building or structure was authorized. Moreover, the State's interpretation would lead to unintended results. If the defendant entered a business without authorization and then entered a locked storage closet, the defendant would be guilty of two burglaries under the State's interpretation. This is not consistent with the plain language of the statute. 

[Update: the state did not file a PR and the mandate issued on July 15, 2019].