Friday, September 25, 2020

Decision to not challenge involuntary statements hoping to appease judge is deficient performance

Richard Ney and David L. Miller won in Khalil-Alsalaami v. State, No. 115,184 (Kan. September 11, 2020), obtaining a new trial in a Riley County aggravated criminal sodomy prosecution. After his convictions were affirmed on appeal, Mr. Khalil-Alsalaami filed a motion pursuant to K.S.A. 60-1507 asserting ineffective assistance of counsel. The district court denied relief, but the COA ordered a new trial. The KSC granted the state's PR, but ended up also ordering a new trial, albeit on slightly different grounds than the COA.

The main issue for the KSC was the decision to drop a challenge to the admissibility of several incriminating statements and stipulation to the voluntariness of those statements. A divided KSC held that Mr. Alsalaami showed deficient performance. First, the majority noted that there were substantial issues related to voluntariness and that defense counsel knew of them:

[Defense counsel] testified that he evaluated these factors in deciding to forego completion of Freed's Jackson v. Denno hearing and filing of a defense motion to suppress, but this blanket statement, adopted and embraced by [the district court], conflicts with his other, more factor-focused testimony in the 60-1507 hearing. Those passages in the record demonstrate that [defense counsel] was aware that three of the five voluntariness factors this court has enumerated would have cut in favor of the defense. 

The majority also noted issues with language and the lack of an interpreter, expounded upon by Justice Beier as described below. Viewing all of the circumstances, the majority concluded the record showed deficient performance:

In sum, we do not share Judge Bosch's certainty that dispensing with a challenge to admission of Khalil-Alsalaami's partial confession was a necessary component of a legally or logically supported trial strategy or that any such challenge would have been hopelessly futile. Quite the opposite. On the undisputed testimony of [defense counsel] under the governing law as it had developed at that time, we hold that Khalil-Alsalaami received deficient representation pretrial and at trial. 

The majority also noted its discomfort with defense counsel's rationale for not such issues because they were worried that they might anger the trial judge:

we must comment briefly on counsel's expressed intention to avoid angering the trial judge by aborting the Jackson v. Denno hearing and avoiding pursuit of a motion to suppress. We understand that judges are human and that experienced defense counsel must size up and react to any individual judge's—or collective jury's—apparent patience for arguments that may or may not be successful. But, here, counsel professed to believe that their abandonment of their client's challenge to admission of his confession might mean that [the district court] would grant them what amounted to a potentially undeserved favor on another, later legal position. Specifically, they believed the judge ultimately demonstrated his appreciation of their forbearance on the confession challenge when he accepted their argument for exception to an evidence bar under the rape shield statute. This calculus bothers us for two reasons. First, in a he said-she said sex crime case, especially one involving an alleged victim who is 13 years old, a confession from the defendant is one of the strongest pieces of evidence the State can possess. In fact, it can produce a conviction with no other support. It speaks far more loudly to a jury than the alleged sexual abuse victim's tangential and legal sexual conduct with an age peer. Second, in our courts, judges are charged with evaluating the merits of each legal argument presented by a party without fear or favor, and without regard for their affection for or patience with counsel representing that party. In other words, [The district judge's] oath forbade him from engaging in the kind of cynical tit-for-tat counsel testified that they expected from him. We cannot encourage this view of how judges operate by endorsing it as the basis of an acceptable strategy under the first prong of Strickland.

The majority held the statements in this case were obviously prejudicial and therefore ordered a new trial. 

Justice Beier concurred and noted a possible additional issue was the failure to provide an interpreter:  

It is undisputed that Khalil-Alsalaami's primary language is not English. Period. The plain language of K.S.A. 75-4351 entitled him to have an interpreter to assist him with questioning by law enforcement. It entitled him to have an interpreter with him in all court proceedings that were part of the prosecution whose goal was to imprison him. Native English speakers such as his trial counsel and the judge presiding over his trial were not equipped to determine otherwise merely because they interacted with him well enough to suit them. This is also true of the district judge who denied Khalil-Alsalaami's K.S.A. 60-1507 motion.

Justice Beier suggests that in future cases where persons who do not primarily speak English but are denied an independent interpreter should build a good record regarding the defendant's actual facility with English to facilitate appellate review.

[Update: the state filed a motion for rehearing/modification on September 29, 2020.]

[Further update: the KSC granted the state's motion for rehearing/modification and set thematter on its December 2020 docket.]

[Further update: it is possible that the rare decision to grant a motion for rehearing may have been influenced by significant turnover on the KSC. The original opinion was decided 4-2, with Chief Justice Nuss not participating in the final decision, Senior Judge McAnany sitting for retired Justice Johnson, and District Judge Godderz sitting in for Justice Rosen, who recused for unspecified reasons. Both Judge McAnany and Judge Godderz were in the majority. At the rehearing argument on December 18, 2020, the three new justices sat, and Judge McAnany and Judge Godderz did not. Justice Rosen still did not participate in the rehearing argument. So the make up of the KSC deciding the motion for rehearing is quite different than the panel deciding the original case.]

Insufficient evidence of facilitation for kidnapping

Kai Tate Mann won in State v. Olsman, No. 120,119 (Kan. App. September 4, 2020), reversing an Elk County kidnapping conviction. Mr. Olsman was charged and convicted of attempted rape and kidnapping. The state specifically charged kidnapping with intent to facilitate flight or the commission of any crime. The COA cited State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976) for the proposition that to support a kidnapping conviction under this subsection, the restraint must not be merely incidental to another crime or inherent in the other crime. In this case, the state alleged that Mr. Olsman grabbed the alleged victim by the arm, said "let's bring up old times," referring to prior sexual encounters, and that when the alleged victim refused, bearhugged her, carried her to the bedroom, threw her on the bed, and climbed on top of her.

The COA applied Buggs to these charges and held that any restraint was the basis of the attempted rape charge:

Here, Olsman physically overpowered [the alleged victim] to commit the attempted rape. There is no independent or significant distinction between Olsman's use of force to carry out the attempted rape and the taking or confinement the State alleges as the basis of the kidnapping charge. The State’s express theory of the case was that Olsman's confinement of [the alleged victim] was the force used to commit the attempted rape. Olsman's actions were both incidental to and inherent in the force or fear supporting the rape charge and do not independently support a kidnapping conviction under the Buggs analysis. Olsman committed the attempted rape by physically overpowering [the alleged victim] and continuing to physically control her movements, in spite of her efforts to resist the attack, until he ultimately allowed her to leave his residence.

The COA observed that there was no evidence that Mr. Olsman was concerned about anyone else being in the house or concern that anyone else would arrive at the house. As a result, the COA held that the evidence was insufficient to support the independent charge of kidnapping.

[Update: the state filed a PR on September 30, 2020. Mr. Olsman filed a cross-PR on November 2, 2020 arguing evidentiary issues related to the attempted rape conviction affirmed by the COA.]

[Further update: the KSC denied the state's PR and Mr. Olsman's cross-PR on February 2, 2021 and the appellate mandate issued on February 9, 2021].

Friday, September 18, 2020

Repeal of intermediate sanctions, Part 2

Kasper C. Shirer won in State v. Dominguez, No. 121,618 (Kan. App. August 28, 2020), obtaining a new probation violation disposition hearing in a Sedgwick County trafficking in contraband prosecution. Ms. Dominguez had pleaded guilty and, being in a border-box, was placed on probation by the district court. Based on technical violations, the district court later revoked Ms. Dominguez' probation and gave her a three-day dip jail sanction and reinstated her probation. Still later, based on additional violations, the district court again found Ms. Dominguez had violated the terms of her probation. At the 2019 hearing on these violations, the state argued that the statute that provided for mandatory 120- or 180-day intermediate sanctions for probation violations had been repealed effective on July 1, 2019 and therefore requested that Ms. Dominguez be remanded to serve her prison sentence. The district court agreed with the state.

On appeal, the COA cited a recent KSC case, State v. Coleman, 311 Kan. 332, 460 P.3d 828 (2020) (blogged about here), which had held that a 2017 repeal of mandatory intermediate sanctions in certain cases did not apply retroactively. The COA held the same rationale applied here:

Although Coleman addressed the retroactivity of a different amendment to the probation revocation statute, the same reasoning applies here. The retroactivity language now found in K.S.A. 2019 Supp. 22-3716(c)(10) was enacted and inserted into the statute in 2014 to serve as an effective date for the new intermediate sanctioning scheme that had been enacted in 2013. Because the 2019 version of the sanctioning scheme did not exist at the time the language in subsection (c)(10) was enacted, the language in subsection (c)(10) cannot serve as a clear indication that the Legislature intended the 2019 amendment to operate retroactively.

As a result, the COA held that the 2019 repeal did not apply retroactively and, therefore, Ms. Dominguez was entitled to remand to impose an intermediate sanction unless the district court found a valid statutory ground to do otherwise.

[Update: the state did not file a PR and the mandate issued on October 6, 2020.]

Saturday, September 12, 2020

Improper bad act evidence and consolidation require a new trial

Michelle A. Davis won in State v. Steven Brown, No. 119,460 (Kan. App. August 21, 2020), obtaining a new trial in a Saline County statutory rape prosecution. Among other issues, Mr. Brown argued that the district court improperly admitted prior bad act evidence and erred by consolidating for trial an information alleging sex crimes and an information alleging intimidation of a witness. The COA found both of these claim meritorious.

With respect to the evidentiary issue, the state sought to admit incidents of property crimes stemming  from arguments with the alleged victims' mother and was admitted to prove why the alleged victim delayed reporting sexual abuse. Mr. Brown agreed that the evidence was material to a disputed issue, but argued that the limited probative value of the evidence was outweighed by its prejudicial effect. Although the COA indicated its frustration with the failure of the district court to make findings on the record, it ultimately held the evidence was not admissible. The COA made detailed analysis under State v. Boysaw, 309 Kan. 526, 439 P.3d 909 (2019), holding that the evidence was of little probative value, but had a high risk of improperly influencing the jury:

In conclusion, having conducted a particularized weighing of the probative value and prejudicial effect of the prior crimes evidence, we are convinced the risk of undue prejudice to Brown substantially outweighed the probative value of the evidence. As a result, the district court abused its discretion in its admission of the State's K.S.A. 60-455 evidence to prove that [the alleged victim] delayed disclosure of her sexual abuse due to her fear of Brown's violent behavior.

The COA went on to hold that the error was not harmless, particularly in light of a limiting instructions given by the district court. The COA concluded that they sufficiently mitigated any improper prejudice:

Under the totality of these circumstances, we are not convinced that the district court's two sentence limiting instruction, which informed the jury that other crimes committed by the defendant "may be considered solely as evidence relating to delayed reporting by [the alleged victim] and for no other purpose," was sufficiently informative to mitigate the prejudice in admission of the K.S.A. 60-455 evidence. As written, the instruction did not admonish the jury to not consider—while it was deliberating the "evidence relating to delayed reporting"—that Brown was a violent criminal whose testimony, therefore, was not to be believed.

With respect to the improper consolidation claim, in addition to the sex offenses, the state also charged Mr. Brown in a separate information with attempting to dissuade the alleged victim and her mother from testifying based on a letter written by Mr. Brown from jail. This information was consolidated for trial with the sex offense charges. 

The COA held that the district court abused its discretion by consolidating the cases for trial:

Unlike the district court, we fail to see how the contents of the letter tended to prove Brown's intent or motive to sexually assault [the alleged victim] or his consciousness of guilt in doing so. The district court's view that the letter was probative to prove that Brown sexually assaulted [the alleged victim] is not only questionable, but it also directly contradicts the limiting instruction the court provided the jury. In the instruction, the district court admonished the jury that it could only consider the letter when evaluating whether Brown committed the intimidation of witness charges "and for no other purpose."

The COA went on to hold that the letter admitted in relation to the intimidation charge "surely placed Brown in an unfavorable light before the jury . . . . The letter had the effect of improperly impugning Brown's character and giving the impression that Brown's reveling in consensual sexual behavior necessarily showed his criminal intent or motive in sexually assaulting [the alleged victim.]"

As a result, the COA held that the consolidation error, by itself, separately required a new trial. The COA also held that taken together, the errors required a new trial:

Consistent with the purpose underlying the cumulative error rule, however, we pause to note how the two reversible errors we have identified, when aggregated, only heightened the prejudicial effect in denying Brown a fair trial. Together, the reversible errors acted synergistically with the end result that the jury received a substantial quantity of derogatory evidence to improperly discredit Brown, impeach his character, or at least put him in a bad light in defending the sexual assault case where the critical evidence was his testimony compared to [the alleged victim's] testimony. Moreover, as mentioned earlier, the evidence of guilt was not overwhelming given the lack of a third-party eyewitness or incriminating forensic evidence. Whether considered singularly or together, we are convinced that Brown did not receive a fair trial.

[Update: the state filed a PR on September 18, 2020].

[Further update: the KSC denied the state's PR on January 29, 2021 and the mandate issued on February 9, 2021.]

Another reckless criminal threat conviction reversed

Christopher M. Joseph and Carrie E. Parker won in State v. Lindemuth, No. 116,937 (Kan. August 28, 2020), obtaining a new trial in a Shawnee County criminal threat prosecution.  The COA had reversed Mr. Lindemuth's conviction on other grounds and the state had sought review. During that time, the KSC decided State v. Johnson (blogged about here), holding that the reckless criminal threat statute was unconstitutional. The KSC applied that precedent and held that the conviction had to be reversed and remanded for a new trial. Like Mr. Johnson, Mr. Lindemuth had been convicted based on both intentional and reckless criminal threat. Like Mr. Johnson, the KSC held that such circumstances required a new trial:

The circumstances contributing to the outcome in Johnson also exist in Lindemuth's case. First, the trial court instructed the jury on both mental states and provided their statutory definitions. . . . 

Second, neither the jury instruction nor the State's arguments directed the jury toward convicting Lindemuth based solely on one mental state or the other. The prosecutor and the court mentioned the requisite mental states several times but simply in a neutral way. For instance, during voir dire, the prosecutor said "[t]he defendant's charge in this case is that he threatened to kill with the intent or in reckless disregard. Meaning he didn't care of the outcome, which is scaring somebody."

Third, while telling the jury that its "agreement upon a verdict must be unanimous," the trial court did not instruct the jury it had to agree unanimously on whether Lindemuth acted either intentionally or recklessly.

Fourth, the jury verdict form stated, "We, the jury, find the defendant guilty of the crime of criminal threat (prior to Matthews leaving Oklahoma)." The jury did not indicate it had unanimously concluded Lindemuth made a criminal threat either intentionally or recklessly.

Finally, Lindemuth denied making any threatening statements to Matthews. So his alleged threat to commit violence and communication of it with the intent to place Matthews in fear—versus his reckless disregard of the risk of causing fear in another— obviously must come from other evidence.

The KSC concluded it could not discern whether the jury had concluded that Mr. Lindemuth committed criminal threat intentionally, so it reversed and remanded for a new trial.