Short list for district court in Lawrence includes two defenders

Here is a press release announcing that the Seventh Judicial District Nominating Commission nominated the following three persons (including two public defenders!) to fill the vacancy created by the retirement of Chief Judge Peggy Carr Kittel: Stacey Donovan, chief public defender Shawnee County Public Defender's Office; Carl Folsom III, assistant federal public defender; and Shon Qualseth, assistant attorney general. The Governor has 60 days to appoint one of these three persons.

[Update: here is a blog post reporting the Governor's selection of Stacey Donovan from this list.]

Late disclosure by state at end of speedy trial limit justfies dismissal with prejudice

Patrick H. Dunn won in State v. Auman, No. 120,438 (Kan. App. November 1, 2019), affirming Judge Porkorny's dismissal of a Douglas County aggravated battery while DUI prosecution. The state did not provide dashcam video of the incident until the Friday before trial the next Monday. The video included evidence of previously undisclosed witnesses and other exculpatory evidence. The Monday trial date was the last date to try Mr. Auman under the statutory speedy trial limit. Just before trial, Mr. Auman moved to dismiss based on the late disclosure. Judge Porkorny agreed finding that the late disclosure impaired the defense opportunity to contact witnesses and that the statutory speedy trial limit was running. The COA held that Judge Porkorny did not abuse her discretion:

If the State had disclosed the video dashcam evidence earlier in the case, instead of the Friday before a Monday trial, Auman would have had an opportunity to contact the witnesses and investigate this available defense. But it was not reasonable—particularly given the time that had passed between the May 2016 collision and the October 2018 trial—to expect that the defense could contact these witnesses and investigate their accounts the weekend before the trial.

And while the prejudice caused by delayed disclosures of material discovery in some cases may be rectified through another discovery sanction (such as the exclusion of certain evidence) or continuing the trial, such remedies were not available here. The State's suggested remedy of excluding the dashcam video, which the State intended to offer so the jury could hear Auman's speech and statements to law enforcement, would have been ineffective to correct the crux of the problem—that the State did not disclose potentially exculpatory information in time for Auman to conduct an investigation and present his defense at trial.

Neither was a continuance a feasible option in this case, as the Monday trial was the last available trial date that would comport with Auman's statutory right to a speedy trial. In short, any other remedy would have placed Auman in the untenable situation of having to choose between enforcing his constitutional right to a fair trial and exercising his statutory right to have his case be tried within 180 days of arraignment. The district court was well-aware of this predicament, explaining it could either dismiss the case when it did, based on the failure to disclose the dashcam video, or dismiss it later under the Kansas speedy trial statute. 

In affirming the district court's dismissal, we are sensitive to the difficult position a prosecutor may find himself or herself in when faced with a law enforcement department that does not promptly respond to discovery requests. Here, the prosecutor submitted numerous requests to the Lawrence Police Department for evidence related to Auman's collision—including multiple requests for dashcam video evidence. In dismissing this case, the district court specifically found that "this is not a blaming game that somehow the prosecution didn't do enough in order to make sure that the discovery was complete," but rather surmised that the issue may have arisen as a result of the computer system used by the State. We have no reason to doubt this assessment, though we note that the State's requests all came within a week of a then-scheduled trial.

Under these circumstances, the COA held that the extreme remedy of dismissal was appropriate.

[Update: the state did not file a PR and the mandate issues on December 17, 2019.]

Reckless criminal threat convictions are unconstitutional

Clayton J. Perkins won in State v. Boettger, No. 115,387 (Kan. October 25, 2019) and State v. Johnson, No. 116,453 (Kan. October 25, 2019), each involving whether a conviction for reckless criminal threat would violate the First Amendment. The state charged that Mr. Boettger made a threat to commit violence made in reckless disregard of causing fear. The state charged that Mr. Johnson made a threat to commit violence with intent to commit fear or made in reckless disregard of causing fear.

The KSC reviewed the overbreadth doctrine under the First Amendment and the potential for a statute that criminalizes reckless speech to criminalize protected speech. It recognized that the SCOTUS has held that this tension can be present with "true threats" and distinguishing between political hyperbole and true threats. After review of SCOTUS precedent (and other courts' interpretation of that precedent), the KSC concluded that Virginia v. Black, 538 U.S. 343 (2003) requires that a threat be made with intent to cause fear in order to be constitutionally prosecutable:

Black found specific intent was necessary to convict under the Virginia cross-burning statute at issue in that case. The Court stated "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." It strains the plain meaning of the Court's language to conclude that "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" are not made "with the intent of placing the [particular individual or group of individuals] in fear of bodily harm or death." A person who "means to communicate a serious expression of an intent to commit an act of unlawful violence" is aware of the illegality of the violence he or she purportedly intends to commit and makes a serious expression of that intent, which he or she meant to communicate. (Emphasis added.) This definition conveys that the conduct is intentional. 

Under Black, the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear causes the statute to be unconstitutionally overbroad because it can apply to statements made without the intent to cause fear of violence. See K.S.A. 2018 Supp. 21-5202(h) and (j) (defining "intentionally" and "recklessly" in Kansas criminal statutes). The provision significantly targets protected activity. And its language provides no basis for distinguishing circumstances where the speech is constitutionally protected from those where the speech does not warrant protection under the First Amendment.

Because Mr. Boettger was only convicted of reckless criminal threat, the KSC reversed his conviction.

In Johnson, the KSC was faced with a slightly different procedural posture, because the state had charged Mr. Johnson with intentional or reckless criminal threat. The state argued that, because evidence supported a conviction for intentional criminal threat, any error should be harmless in the companion case. The KSC disagreed:

The district court instructed the jury on both forms of criminal threat and accurately recited the definitions of "intentionally" and "recklessly" in K.S.A. 2018 Supp. 21-5202(h) and (j). But neither the jury instructions nor the State's arguments steered the jury toward convicting Johnson based solely on one mental state or the other. Nor did the judge instruct the jury it had to agree unanimously on whether Johnson acted intentionally or recklessly. And the verdict form did not require the jury to make a specific finding. Thus, the record provides no basis for us to discern whether the jury concluded that the State had proved beyond a reasonable doubt that Johnson acted intentionally.

Nor, despite the State's argument, does a review of the evidence. The State asserts that given Johnson's threat to kill his mother, "[n]o jury would find this threat was anything other than intentionally made with the intent to place another in fear." But the State fails to address conflicting evidence at trial, particularly Walker's testimony that the family routinely threatened to kill each other but no one took it literally. Walker also testified she did not recall Johnson threatening to kill her or burn down the house. And she thought the officers may have misinterpreted what she said because she was in a highly excited state and had been discharged from the hospital two days earlier and was still under the effect of morphine. Walker also made it clear she was motivated to have her son leave her home. A reasonable juror could thus conclude she exaggerated the situation to obtain legal help in keeping her son away. Given these circumstances, a reasonable fact-finder may have determined there was some discrepancy between what Johnson said to Walker and what she reported to the officers. 

The jury was free to determine Walker's credibility and decide what weight to give to her testimony. If it believed that Johnson did not intend such threats to be taken literally but that Walker was genuinely fearful when she called for law enforcement assistance, it could have believed the statements were made with a reckless disregard for whether they caused fear. The State has not addressed this possibility and has not met its burden of proving the error harmless beyond a reasonable doubt. 

As a result, the KSC reversed Mr. Johnson's conviction and remanded for a new trial.

These cases are likely to be impactful, both in criminal threat cases directly and in cases where criminal threat has been used as a person felony in a client's criminal history. Many cases probably will involve situations like Mr. Johnson's--where it will be difficult or impossible to discern whether a client was convicted only of intentional criminal threat. So I would expect that we will see additional litigation in  on these questions.

[Update: the state filed a petition for writ of certiorari on February 20, 2020 as outline in SCOTUSblog here.]

[Further update: SCOTUS denied the state's petition for writ of certiorari on June 22, 2020. The KSC mandate issued on June 23, 2020.]

December 2019 KSC Docket

Here are the criminal cases on the KSC docket for December 16-20, 2019.  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.

December 16--Monday--a.m.

State v. Michael Keyes, No. 118,894 (Grant)

Direct appeal; First-degree premeditated murder

Randall L. Hodgkinson

[Reversed/remanded; Stegall; September 11, 2020]

• Failure to give self-defense instruction
• Failure to give lesser-included offense instruction

State v. Charles Satchell, No. 116,151 (Sedgwick)

Direct appeal (petition for review); Agg criminal sodomy/rape

Caroline M. Zuschek

[Affirmed/vacated; Leben; June 26, 2020]

• Improper admission of prior bad acts to show propensity
• Improper imposition of postrelease supervision

State v. Christopher Harris, No. 116,515 (Sedgwick)

Direct appeal (petition for review); Criminal possession of weapon

Kasper C. Shirer

[Reversed; Stegall; July 17, 2020]

• Residual clause of criminal possession of weapon statute vague
• Failure to give mistake of law instruction

State v. Crystal Galloway, No. 117,941 (Cherokee)

Direct appeal (petition for review); First-degree premeditated murder/arson

Carol Longenecker Schmidt

[Affirmed/vacated; Rosen; March 13, 2020]

• Failure to change venue
• Improper admission of involuntary statements
• Failure to consider mitigating circumstance of lack of criminal history

December 17--Tuesday--a.m.

State v. Robbie Thomas, No. 115,990 (Chautauqua)

Direct appeal (petition for review); Aggravated battery/child abuse

Michelle A. Davis

[Reversed/remanded; Luckert; July 24, 2020]

• Improper instruction re: knowing conduct for aggravated battery
• Prosecutorial error in closing argument
• Improper classification of Virginia prior conviction

In re J.P., No. 118,790 (Wyandotte)

Sentencing appeal (petition for review)

Michael Christian Duma

[COA dismissal reversed; Leben; June 26, 2020]

• Whether COA has jurisdiction over sentence appeal in juvenile case

December 18--Wednesday--a.m.

State v. Morgan Boeschling, No. 116,757 (Reno)

Direct appeal (petition for review); Burglary/Criminal possession of firearm

Randall L. Hodgkinson

[Affirmed; Beier; February 14, 2020]

• Improper answer to jury question re: nullification
• Improper culpable mental state instruction for burglary
• Failure to give accomplice instruction

State v. Charity Downing, No. 116,629 (Reno)

Direct appeal (petition for review); Burglary

Michelle A. Davis

[Reversed; Biles; January 24, 2020]

• Insufficient evidence of "dwelling" to prove residential burglary

State v. Hailey Larkin, 115,985 (Jackson)

Direct appeal (petition for review); DUI

Matthew Ryan Roy Williams

[Petition dismissed as improvidently granted; February 5, 2020]

• Failure to suppress blood test results
• Insufficient evidence of BAC at time of driving
• Judicial misconduct (improper judicial comment)

December 19--Thursday--a.m.

State v. Kevin Coleman, No. 118,673 (Saline)

Probation revocation appeal (petition for review)

Kai Tate Mann

[Reversed/remanded; Green; April 10, 2020]

• Failure to impose intermediate sanctions upon revocation

State v. Jerry Liby, No. 118,834 (Saline)

Probation revocation appeal (petition for review)

James M. Latta

[Dismissed as moot; March 24, 2020]

• Failure to impose intermediate sanctions upon revocation

December 20--Friday--a.m.

State v. Brooke Dinkel, No. 113,705 (Saline)

Direct appeal; Rape

Richard Ney

[Reversed/remanded; Rosen; June 12, 2020]

[Reset for argument on May 25, 2021]

• Whether forcible rape requires proof of voluntary act

State v. Anthony Brazzle, No. 116,649 (Riley)

Direct appeal (petition for review); Possession with intent to distribute

Rick Kittel

[Affirmed; Luckert; July 10, 2020]

• Evidence of prior sales irrelevant to intent to distribute
• Insufficient evidence of possession of oxycodone without proof of lack of prescription
• Insufficient evidence that pill was oxycodone