Appeal, Judge Must Advise Defendant of Right To and Time Limit
Cities - Charter v. Regular Ordinance
Credibility of Witnesses, Comment On
Jurisdiction - Municipal Courts
Selective or Discriminatory Prosecution
State v. Murdock, ___ Kan. ___, ___ P.3d ___ (No. 95,365, filed 7/18/08). In an aggravated battery trial, the state produced circumstantial evidence in its case in chief that defendant possessed brass knuckles, the struck the victim in the head causing him to bleed. Defendant moved for acquittal at the close of the state's case, arguing there was no evidence defendant had used a deadly weapon. The prosecutor reviewed the transcript and then moved to reopen his case to introduce testimony about the brass knuckles. The district court allowed it. The Kansas Supreme Court held there was sufficient circumstantial evidence prior to reopening the case to deny the motion for acquittal, and the district court did not err in denying the motion or allowing the prosecutor to reopen the case.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080718/95365.htm
City of Wichita v. Lewis, 31 Kan.App.2d 837, 75 P.3d 1228 (2003). Appeals filed outside the 10-day limit of K.S.A. 22-3608 are untimely, even if the court stayed the sentence knowing the defendant intended to appeal. Even though the Court of Appeals had no jurisdiction, it held the language of the ordinance in question, providing that noises exceeding certain decibel levels are declared to be excessive, does not require decibel measurements in all cases for there to be a finding of excessive noise. A noise ordinance which requires a city to prove the alleged excessive noise interferes with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area, is not unconstitutionally vague.
http://www.kscourts.org/kscases/ctapp/2003/20030822/89693.htm
Appeal, Judge Must Advise Defendant of Right To and Time Limit
State v. Brown, 150 P.3d 335, 2007 WL 219964 (unpublished, Case No. 94,832).
State v. Gonzales, ___ Kan. ___, ___ P.3d ___ (No. 102400, filed 06/18/10). A prosecutor who seeks to have criminal defense counsel testify about a current or former client's confidential information must file a motion for issuance of a subpoena. On hearing the motion, Kansas Rule of Professional Conduct 3.8(e) is the analytical rubric for a district court judge. Under it, the district judge may not issue such a subpoena unless the prosecutor establishes that (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. The grounds for quashing such a subpoena may include the nonexistence of any of the three KRPC 3.8(e) (2009 Kan. Ct. R. Annot. 564) factors, as well any of the other factors listed in K.S.A. 60-245(c). The initial
3 determinations made on the KRPC 3.8(e) factors in order to issue the subpoena have no preclusive effect, as those determinations were made without the participation of the attorney subject to the subpoena. Thus the State retains the burden of demonstrating the existence of each of the KRPC 3.8(e) factors, with one modification: If the attorney invokes the attorney-client privilege, the attorney has the burden to show the privilege applies; if, on the other hand, the State contends an exception to the privilege applies, the State has the burden of establishing the existence of the exception.
City of Wichita v. Edwards, 23 Kan.App.2d 962, 939 P.2d 942 (1997). Evidence required to prove ethnic intimidation was also necessary to prove battery and disorderly conduct, therefore convictions of all three are multiplicitious.
http://www.kscourts.org/kscases/ctapp/1997/19970523/75213.htm
City of Wichita v. Bannon, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,977, filed 06/18/09). Mid-America auto auction repeatedly notified Bannon not to enter the dealer's only area of the auction, but he did and was arrested. Bannon claimed that State v. Hall, 270 Kan. 194, 14 P.3d 404 (2000) required dismissal because it means you can't establish burglary based on a segregated portion of a structure. The district court purported to grant a "motion for acquittal" based on a stipulation prior to the jury being empaneled. Despite the judge's characterization, it was a dismissal allowing a state's appeal pursuant to K.S.A. 22-3602(b)(1). Additionally, the elements of trespass are broader than burglary, and unauthorized entry into a structure do not have to be proved to show a trespass. Reversed and remanded for trial.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090619/100977.pdf
Cities - Charter v. Regular Ordinance
Farha v. City of Wichita, 284 Kan. 507, 512, 161 P.3d 717 (2007). There was no requirement for Wichita to include in a charter ordinance opting out of the Code of Procedure for Municipal Courts, K.S.A. 12-4101 through 12-4602, a provision regarding court costs. Cities may establish substitute and additional provisions by ordinary ordinance once they have validly chartered out of a non-uniform enactment. Additionally, the City's charter ordinance was not repealed by later amendments to the enactment containing the statute from which the City was exempted.
http://www.kscourts.org/kscases/supct/2007/20070713/95445.htm
Unites States v. Romero, ___ F.3d ___ (10th Cir. No. 03-4266, filed 03/09/2004). District court abused its discretion in denying the government's FRCP rule 48(a) motion to dismiss the charges against defendant in accordance with the pre-indictment agreement; public confidence in the judicial system would be severely undermined if defendants were to make agreements with the government which the courts declined to enforce.
United States v. Anderson, 940 F.2d 593 (10th Cir. 1991). It is permissible for a federal prosecutor to pursue charges against a defendant who has already been tried and convicted in state court. As long as a prosecutor's decision is not based on impermissible factors such as race, sex, religion or exercise of a statutory or constitutional right, so long as the prosecutor has probable cause to believe the defendant committed an offense, the decision whether or not to prosecute and what charge to file generally rests entirely in the prosecutor's discretion.
United States v. Hamm, 659 F.2d 624 (5th Cir. 1981). "Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought." 659 F.2d at 628 n. 13 (Burger, J.)
Van de Kamp v. Goldstein, ___ U.S. ___, 129 S.Ct. 855, ___ L.Ed.3d ___ (No. 07-854, 2009). After being wrongfully convicted of murder based on the perjury of a jailhouse informant, Thomas Lee Goldstein brought a Section 1983 suit against John Van de Kamp and Curt Livesay, the chief prosecutors at the Los Angeles County District Attorney's Office. Goldstein alleges that the prosecutors failed to establish a system to share information about benefits given to informants, with the result that the prosecutor who tried Goldstein did not have information on the informant and consequently did not inform Goldstein, as is constitutionally required. Van de Kamp and Livesay claimed absolute immunity from civil suit, based on the Supreme Court's decision in Imbler v. Pachtman. The Ninth Circuit, however, held that since their alleged failures were administrative, and not prosecutorial in nature, Van de Kamp and Livesay were not entitled to absolute immunity. The Supreme Court reversed.http://www.law.cornell.edu/supct/cert/07-854.html
Pierce v. Gilchrist, ___ F.3d ___ (10th Cir. No. 02-6241, 02-6351, filed 3/2/2004). A claim may be actionable under section 1983 without satisfying the requirements of analogous common law tort. Motions to dismiss brought by a forensic chemist and a district attorney were properly denied; they are not entitled to qualified immunity on allegations that they employed falsified forensic evidence and testimony to prosecute accused persons, including plaintiff.
Stewart v. Abraham, ___ F3d ___ (3rd Cir. No. 00-2358, filed 12/27/01). The "rearrest policy" used by the Philadelphia District Attorney's office does not violate the Fourth Amendment of the U.S. Constitution.
McCormick v. Board of County Commissioners of Shawnee County, Kansas, 272 Kan. 627, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).. A prosecutor has absolute prosecutorial immunity for filing a complaint, but only qualified immunity for signing a probable cause affidavit. "It is a law enforcement officer who typically attests to facts in an affidavit."
State v. Moody, 282 Kan. 181, 192, 144 P.3d 612 (2006). Because prior DUI convictions are not elements of the offense of DUI, a complaint which fails to indicate each prior offense is not jurisdictionally barred; however, a defendant is entitled under due process to notice in the information or complaint of the severity level of the DUI offense being charged. Where a defendant with three prior DUI convictions receives notice in the complaint of the severity level of the DUI offense charged, and receives notice at the plea hearing of the maximum penalty for a fourth DUI offense, the defendant is appropriately sentenced as a fourth-time DUI offender, although the complaint alleged only "two or more" prior offenses. Also, there is no requirement to consider financial circumstances at sentencing when taxing BIDS reimbursement. Consideration of a defendant's financial resources at the time the assessment is enforced, rather than at the time of assessment, provided an outcome consistent with the legislature's intent in enacting K.S.A. 2002 Supp. 22-4513. See State v. Robinson, 33 Kan. App. 2d 773, 109 P.3d 185 (2005).
State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996); State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998); State v. Seems, 31 Kan.App.2d 794, 74 P.3d 55 (2003) and State v. Rome, 269 Kan. 47, 5 P.3d 515 (2000). Failure to allege a severity level in a DUI complaint means a defendant can only be sentenced for a B misdemeanor.
http://www.kscourts.org/kscases/ctapp/2005/20051014/92248.htm
State v. Kraushaar, 264 Kan. 667, 957 P.2d 1106 (1998). "Whether a court has jurisdiction over the offense in a particular case is determined from the allegations in the accusation. An information is the only vehicle by which a court obtains and has limits placed on its jurisdiction."
State v. McElroy, ___ Kan. ___, ___ P.3d ___ (No. 92968 , filed 3/17/2006). "The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001). As this issue is being raised for the first time on appeal, the post-State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), standard of review applies:
"The post-Hall standard applies a common-sense interpretation of complaints and informations and requires this court to look at whether the claimed defect in the information has prejudiced the defendant in the preparation of his or her defense, impaired the defendant's ability to plead the conviction in any subsequent prosecution, or limited the defendant's substantial rights to a fair trial." State v. Martis, 277 Kan. 267, 275, 83 P.3d 1216 (2004).
"The orderly resolution of criminal law issues requires timely raising of claims relating to the validity of an information. Tardily challenged informations are to be construed liberally in favor of validity. The validity of an information is to be tested by reading the information as a whole. The elements of the offense may be gleaned from the information as a whole. An information not challenged before verdict or finding of guilty or pursuant to K.S.A. 22-3502 by a motion for arrest of judgment will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted. [Citation omitted.]" Hall, 246 Kan. at 764.
In State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004), the court stated: "The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. [Citation omitted.] However, the test used for evaluating the sufficiency of the charging document depends on when the issue is first raised. [Citation omitted.]" If a defendant timely moves to arrest judgment in the district court, an appellate court will examine whether the charging document sets out the essential elements of the crime. If the charging document fails to set out the essential elements of the crime, it is fatally defective and the district court lacks jurisdiction to convict the defendant of the crime." 277 Kan. at 661-62.
In Shirley, the court discussed State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), which set forth a new standard of review when a defendant challenges the complaint for the first time on appeal. See 277 Kan. at 661-62. Restating the Hall standard of review when the charging document is challenged for the first time on appeal, the Shirley court stated:
"[T]he defendant must show that the claimed defect (1) prejudiced the defendant's preparation of a defense, (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution, or (3) limited the defendant's substantial rights to a fair trial under the Sixth Amendment to the United States Constitution or Section 10 of the Kansas Constitution Bill of Rights. [Citation omitted.]" 277 Kan. at 662.
Generally, if a defendant fails to move to arrest judgment at the district court, the defendant must establish one of the Hall factors to prevail on a claim of a defective complaint on appeal.
United States v. Robinson, ___ F.3d ___ (10th Cir. No. 08-3120, filed 10/20/09). Robinson was convicted and sentenced to 33 months in prison for being a felon in possession of a firearm after selling a gun to a confidential informant ("CI"). Six days before Robinson's trial, the government's star witness—the CI who purchased the gun from Robinson—was involuntarily committed to Osawatomie. The district court reviewed the CI's medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. The Circuit ruled that refusal to provide Robinson access to the CI's medical records contravened due process and that limitations on cross-examination of the CI violated the Sixth Amendment. The CI testified he only had "a little bit" of a drug problem and was not "regularly" violating his agreement with the ATF by using drugs. He also claimed his memory lapses were due solely to the passage of time. The medical records showed that the CI had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records also contain admissions by the CI that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the CI had a "long history of mental illness" starting in 2000, which included auditory hallucinations, seeing "things out through the window that are not really there," and "hearing voices telling him to do thing[s]." The Circuit concluded that if the jury had known these things, it might have rejected the CI's testimony and resulted in Robinson's acquittal. Notably, although the CI carried a digital recorder during the controlled buy of the weapon, the recording was "low-quality, interspersed with static, and revealed few details of the events that took place inside Robinson's home." Even the government admitted it had "limited evidentiary value."
http://ca10.washburnlaw.edu/cases/2009/10/08-3120.pdf
State v. Laturner, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,086, filed 7/27/2007). K.S.A. 2006 Supp. 22-3437(3) which allows for admission of lab reports without the laboratory technician's testimony violates a defendant's right to confrontation under Crawford v. Washington, 541 U.S. 36, and is therefore unconstitutional. After the state files its notice of intent to proffer, the state or the court must schedule a hearing on whether the defendant voluntarily waives their right to confrontation.
Crawford v. Washington, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-9410, filed 03/08/ 2004). Admission of a testimonial statement made by defendant's wife during police interrogation violated the Confrontation Clause. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.
State v. Jones, 242 Kan. 385, 748 P.2d 839 (1988). Jones was the sole stockholder, president and operator of Johnson County Motors, Inc (JoCo). The state charged "Jones d/b/a Johnson County Motors Inc." with impairing Yamaha's security interest on JoCo's consigned inventory. Jones attacked the complaint as failing to charge a crime because "d/b/a" has no legal significance and because it was insufficient to hold him responsible as an individual for a corporate crime. The Court disagreed. If found the complaint sufficiently apprised Jones that he was being charged individually with corporate crimes, despite the lack of a reference to K.S.A. 21-3207. Failure to amend the complaint to proceed under 21-3207 did not make it insufficient. However, the trial court improperly broadened the scope of the charge by adding an alternate theory (individually) in the jury instruction, which could have led to a conviction of a charge of which Jones was unaware and thus deprived him due process.
Atchison Homeless Shelters, Inc. v. The County of Atchison, Kansas, 24 Kan. App. 2d 454, ___ P.2d ___ (1997). Only four categories of individuals may appear in the courts of this state (except for out-of-state attorneys): (1) members of the bar; (2) graduates of accredited law schools who have temporary permits to practice law; (3) legal interns, who are law students supervised by members of the bar responsible for the interns' activities; and (4) nonlawyers, who may represent only themselves and not others in court. Kansas follows the common-law rule that an appearance in court of a corporation by an agent other than a licensed attorney is not proper since a corporation is an artificial entity without the right of self-representation. See also State ex rel. Stephan v. Adam, 243 Kan. 619, 623, 760 P.2d 683 (1988); State ex rel. Stephan v. Williams, 246 Kan. 681, 690-91, 793 P.2d 234 (1990).
State v. Lopez, ___ Kan.App.2d ___, ___ P.3d ___ (No. 93560, filed 10/13/2006). Expenses of the government's witnesses who testified about charges that resulted in acquittal cannot be assessed against the defendant as court costs. It is beyond the district court's discretion to award costs and expenses that were unrelated to prosecuting the crimes of conviction. Although it may be difficult to ascertain with precision, we believe the district court should determine which costs and expenses were necessary to prove the crimes of conviction.
Rothgery v. Gillespie County, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-440, filed 6/23/ 2008). Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm. The officers brought Rothgery before a magistrate judge, as required by state law, for a so-called "article 15.17 hearing," at which the Fourth Amendment probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment's dismissal. Rothgery sued under 42 U. S. C. § 1983 claiming that if the County had provided him a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed. He asserts that the County's unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel. The Supreme Court agreed, holding that a criminal defendant's initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct.
http://www.law.cornell.edu/supct/html/07-440.ZS.html
State v. McCormick, ___ Kan.App.2d ___, ___ P.3d ___ (No. 92,408, filed 05/25/07). Although the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel, the right does not extend to providing an indigent defendant with the representation of his or her choice. Therefore, the decision to grant a criminal defendant new appointed counsel depends heavily upon the circumstances presented in a given case, and the district court possesses broad discretion in determining whether to appoint new counsel. State v. Cromwell, 253 Kan. 495, 856 P.2d 1299 (1993). An appellate court will reverse a judgment of the district court for an abuse of discretion only when no reasonable person would have adopted the view of the district court. State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006).
When a criminal defendant seeks the appointment of new counsel, the defendant must establish a justifiable dissatisfaction with the existing counsel, which has been narrowly interpreted to mean a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and the defendant. State v. Jasper, 269 Kan. 649, 654, 8 P.3d 708 (2000). Not all disagreements between counsel and defendants constitute irreconcilable conflicts or lead to complete breakdowns in communication. State v. Ferguson, 254 Kan. 62, 71, 864 P.2d 693 (1993).
Padilla v. Kentucky, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-651, filed 03/31/10). In 2002, Jose Padilla, a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claims he pled guilty in reliance on his defense counsel's advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claimed that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contended that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas. The Supreme Court disagreed, and held that Padilla made a prima-facie showing of ineffective assistance satisfying the first prong of Strickland. The court remanded for a hearing on how Padilla was prejudiced by the bad advice.
State v. Youngblood, ___ Kan. ___, ___ P.3d ___ (No. 96,850, filed 05/08/09). Youngblood's felony possession charge is reversed. Youngblood was entitled to counsel when the municipal court found him guilty and sentenced him to a prison term, even though the jail time was conditioned upon probation. The state could not prove a valid waiver. The denial of that right to counsel renders the uncounseled misdemeanor conviction in municipal court unconstitutional under the Sixth Amendment. Accordingly, the unconstitutional conviction could not be collaterally used in district court for sentence enhancement.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090508/96850.htm
State v. Long, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,736, filed 03/20/2009). Defendant was convicted of possession of methamphetamine. Three prior battery convictions from the Garden City Municipal Court were included in his criminal history score, and aggregated to a prior felony pursuant to K.S.A. 21-4711. Long claimed the misdemeanors should not have been counted because there was no proof he was represented by counsel nor waived counsel. Long did not initially receive a jail sentence on his batteries, but later received a suspended jail sentence when later hauled before the court for failure to pay his fines. The court held that the batteries were properly scored against Long, although any jail sentence or probation was invalid based on Alabama v. Shelton, 535 U.S. 654 (2002) and United States v. Jackson, 493 F.3d 1179 (10th Cir. 2007).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090320/98736.htm
United States v. Gonzalez-Lopez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05–352, filed 6/262006). A trial court's erroneous deprivation of a criminal defendant's choice of counsel is not subject to harmless-error analysis and entitles the defendant to reversal of his conviction. Respondent hired attorney Low to represent him on a federal drug charge. The District Court denied Low's application for admission pro hac vice on the ground that he had violated a professional conduct rule and then, with one exception, prevented respondent from meeting or consulting with Low throughout the trial. The jury found respondent guilty. Reversing, the Eighth Circuit held that the District Court erred in interpreting the disciplinary rule, that the court's refusal to admit Low therefore violated respondent's Sixth Amendment right to paid counsel of his choosing, and that this violation was not subject to harmless-error review.
http://supct.law.cornell.edu/supct/html/05-352.ZO.html
United States v. Bush, ___ F.3d ___ (10th Cir. No. 03-4224, filed 4/26//2005). Once the government establishes the existence of a prior conviction, it becomes the defendant's burden to prove by a preponderance of the evidence that the conviction was unconstitutional. This is so because a 'presumption of regularity' attaches to a final judgment even when questions of waivers of constitutional rights are waived. To overcome this presumption, a defendant may not simply point to a silent or ambiguous record, but must come forward with affirmative evidence establishing that the prior convictions were obtained in violation of the constitution.
Iowa v. Tovar, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-1541, filed 03/08/2004). For a right-to-counsel waiver at the plea stage to be "knowing and intelligent," it is sufficient that the trial court inform the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. He need not be warned of the risk that a viable defense will be overlooked, or that he will lose the opportunity to obtain an independent opinion on whether it is wise for
him to plead guilty.
Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (No. 00-1214, filed 5/20/2002). Suspended or Conditional Sentences of Imprisonment in Misdemeanor Cases Invoke a Right to Counsel. Defendant Shelton represented himself in a criminal trial. The Alabama court repeatedly warned Shelton about the problems self-representation entailed, but at no time offered him assistance of counsel at state expense. He was convicted of misdemeanor assault and sentenced to a 30-day jail term, which the trial court immediately suspended, placing Shelton on two years' unsupervised probation. The Alabama Supreme Court reversed Shelton's suspended jail sentence, reasoning that U.S. Supreme Court decisions in Argersinger v. Hamlin and Scott v. Illinois require provision of counsel in any petty offense, misdemeanor, or felony prosecution "that actually leads to imprisonment even for a brief period." The Alabama Supreme Court concluded that because a defendant may not be imprisoned absent provision of counsel, Shelton's suspended sentence could never be activated and was therefore invalid. The Supreme Court in a 5-4 decision affirmed. The majority held that suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged.
State v. Kraft, ___ Kan.App.2d ___, ___ P.3d ___ (No. .96,136. filed 7/27/2007). District court did not err in denying defendant's motion to withdraw his plea to attempted aggravated escape from custody. Although defendant had signed out of a community corrections program for house arrest, he never set up the equipment and failed to report thereafter. Thus, he was in lawful custody.
State v. Hughes, ___ Kan. ___, ___ P.3d ___ (No. 98,716, filed 02/12/10). While the waiver of counsel form for municipal courts suggested in In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.3d 977 (1985), does not have to used verbatim, it will go a long way towards proving a valid advisory of rights and waiver. The law of this state "is realistic. Substance prevails over form." While the lack of judicial certification is not fatal, the necessary information must be ascertainable from other means. The waiver forms used by the Dodge City municipal court in this case did not show that Hughes was "fully and properly advised of his rights," thus the state failed in its burden to show a knowing and voluntary waiver and his two prior municipal court convictions should not have been included in his criminal history score.
Credibility of Witnesses, Comment On
State v. Johnson, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89,477, filed 3/26/2004). "KRPC 3.4(e) does not distinguish between prosecutor or defense counsel. When defense counsel calls a State witness a liar, he or she violates KRPC 3.4(e). Defense counsel, like the prosecutor, is prohibited from commenting on the credibility of a witness. Here, defense counsel clearly violated KRPC 3.4(e) by commenting on the credibility of a witness. A trial court which overrules a prosecutor's objection to defense counsel calling a State witness a liar compounds the violation of KRPC 3.4(e) . . . . Both counsel and judge are officers of the court and are required to abide by the rules of conduct."
Regan-Touhy v. Walgreen Company, ___ F.3d ___ (10th Cir. No. 06-6242, filed 5/20/2008). Plaintiff contracted herpes and had a prescription filled for her condition at Walgreens. Her condition became widely known in her hometown of Edmond, Oklahoma. Her ex-husband told her that a Walgreen's employee told him about her condition. Plaintiff sued Walgreens, and requested broad discovery from Walgreens to find out if the Walgreen's employee was the source of the information. The district court denied the discovery requests and granted Walgreens summary judgment. The Circuit affirmed, finding no abuse of discretion. With regard to a request for the Walgreen employee's personnel file, the Circuit stated, "personnel files often contain sensitive personal information, just as pharmacy files doe, and it is not unreasonable to be cautious about ordering their entire contents disclosed willy-nilly."
http://ca10.washburnlaw.edu/cases/2008/05/06-6242.pdf
State v. Dumars; 33 Kan. App. 2d 735, 108 P.3d 448, 462 (2005). "An officer's field notes are "reports, memoranda or other internal government documents made by officers in connection with the investigation or prosecution of the case" and are not discoverable under K.S.A.2004 Supp. 22-3212(b). See, e.g., State v. Johnson & Taylor, 223 Kan. 119, 124, 573 P.2d 976 (1977); State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973), modified on other grounds 213 Kan. 585, 518 P.2d 136 (1974); State v. Mans, 213 Kan. 36, 40, 515 P.2d 810 (1973). Because K.S.A.2004 Supp. 22-3212(b) does not authorize discovery of an officer's field notes, K.S.A.2004 Supp. 22-3212(g) did not apply and the State committed no error in failing to disclose the officer's field notes earlier."
United States v. Ruiz, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-595, 6/24/2002). The Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. Although the Fifth and Sixth Amendments provide, as part of the Constitution's "fair trial" guarantee, that defendants have the right to receive exculpatory impeachment material from prosecutors, see, e.g., Brady v. Maryland, 373 U.S. 83, 87, a defendant who pleads guilty forgoes a fair trial as well as various other accompanying constitutional guarantees, Boykin v. Alabama, 395 U.S. 238, 243. As a result, the Constitution insists that the defendant enter a guilty plea that is "voluntary" and make related waivers "knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences." The Ninth Circuit in effect held that a guilty plea is not "voluntary" (and that the defendant could not, by pleading guilty, waive his right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that they would have had to make had the defendant insisted upon a trial. Several considerations, taken together, demonstrate that holding's error. 241 F.3d 1157, reversed.
United States v. Golyansky, ___ F3d ___ (10th Cir. No. 01-1499, filed 3/5/2002). District court abused its discretion by excluding testimony of a government witness for the prosecutor's failure to timely supply impeachment evidence (witnesses' mental health history) to the defendant until 19 days prior to trial. Although a sanction is appropriate, a continuance would have cured any prejudice, and in the absence of bad faith, the court should impose the least severe sanction that will accomplish prompt and full compliance with the discovery order. The preferred sanction is a continuance.
State v. Wilkins, 269 Kan. 39, 42, 5 P.3d 520 (2000). Prosecutors are under a positive duty, independent of either a defendant's request or court order, to disclose exculpatory evidence. Exculpatory evidence "'tends to disprove a fact in issue which is material to guilt or punishment' of a defendant." State v. Nuessen, 23 Kan. App. 2d 456, 461, 933 P.2d 155 (1997) (quoting State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 [1986]). Exculpatory evidence may include evidence bearing on the credibility of a key witness. 23 Kan. App. 2d at 461.
State v. Bohmer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,090, filed 04/03/09). The state charged Bohmer with DUI, DWS & TOC. Bohmer filed a motion to dismiss with prejudice alleging that the DUI count was defective. The judge granted the motion and the state failed to appeal. The Court of Appeals affirmed dismissal of the DUI count, but reversed as to the other two. Under the facts of this case, where the court made it clear from the bench that the motion for dismissal with prejudice was sustained, and specifically referenced the State's right to appeal, and filed a motion minute sheet of record within 2 days of the hearing clarifying an intent to dismiss with prejudice, these are not circumstances where it is appropriate to apply the doctrine of excusable neglect under K.S.A. 60-2103(a) to permit a belated appeal of the ruling.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090403/99090.htm
United States v. Chapman, 2008 WL 1946744 (9th Cir. 2008). The district court did not err in dismissing indictment based on government's failure to comply with discovery obligations and for making flagrant misrepresentations to the court. The prosecutor failed to keep a log indicating disclosed and nondisclosed materials, and repeatedly alleged that he had fully complied with Brady and Giglio, knowing full well he could not verify those claims.
State v. Bolen, 270 Kan. 337, 343-45, 13 P.3d 1270 (2000). It was an abuse of discretion for the trial court to dismiss charges with prejudice. Trial had been set for March 2. One week before trial, defense counsel indicated he would file a motion to suppress, which he did file on March 1 at 3 p.m. The court wanted to take up the motion at the regularly scheduled trial time, but the prosecutor was not available. The state requested a continuance, which the trial court denied, and dismissed the case "without–or with prejudice, . . . as a sanction for [failure to prosecute]." The trial court's judgment was reversed. Where there has been no showing that the defendant suffered actual prejudice as a result of a prosecutor's misconduct, and alternative means of sanctioning the prosecutor exist for the violation, dismissal of pending charges with prejudice is an abuse of discretion. Defendant having to take time off work for the hearing is only "slight" prejudice.
State v. Funk, 27 Kan.App.2d 712, 8 P.3d 32 (2000). District court did not abuse discretion where prosecutor twice advised defense counsel that DUI preliminary hearing would proceed the next day, defendant drove down from Iowa, and State was not ready to proceed and moved for a continuance. While a court should only sanction a prosecutor by dismissing a criminal complaint under "extremely compelling circumstances and where a lesser sanction would not accomplish the desired objective," there was no abuse of discretion in doing so in this case.
State v. Davis, 266 Kan. 638, 972 P.2d 1099 (1999). A prosecutor's failure to produce DUI discovery was contemptuous, but dismissal with prejudice is a "very drastic sanction," that should not be imposed if a lesser sanction would accomplish the desired objective. In the absence of prejudice to the defendant, sound policy considerations favor resolution of criminal charges on their merits.
State v. Miller, 257 Kan. 844, 854-55, 896 P.2d 1069 (1995). Dismissal by the court should only occur under "extremely compelling circumstances."
State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993). It is ordinarily the prosecutor's decision to dismiss, not the court's.
State v. Williamson, 253 Kan. 163, 165, 853 P.2d 56 (1993). The court dismissed aggravated assault charges committed against the defendant's family. Defendant was schizophrenic and held for treatment. Defendant moved to dismiss. After hearing the wife's testimony that the defendant was schizophrenic, the court held there was no longer any probable cause and dismissed the charges. The Supreme Court reversed. "A county attorney or district attorney is the representative of the State in criminal prosecutions. As such, he or she controls criminal prosecutions. It is the county or district attorney who has the authority to dismiss any charge or to reduce any charge." "The prosecuting attorney has discretion to dismiss charges, and the court cannot refuse to allow a dismissal." The court's dismissal of criminal charges, no matter how enlightened, was "impermissible judicial intrusion into the prosecutor's function."
City of Overland Park v. Pavelcik, 248 Kan. 444, 448-49, 806 P.2d 969 (1991). The "drastic procedure" of dismissal by the court "in an action involving the rights of citizens [must] be exercised with the utmost care." The record should support the district court's action that leads to the "extraordinary remedy of dismissal."
State v. Clovis, 248 Kan. 313, 331, 807 P.2d 127 (1991). "A dismissal with prejudice is a very drastic sanction to impose in a criminal case. Such sanction should not be imposed if a lesser sanction would accomplish the desired objective."
State v. Hurla, ___ Kan. ___, ___ P.3d ___ (No. 87852, filed ____ 2003). State and defendant entered into diversion. Defendant filed a motion for early termination. District court dismissed the criminal case. Supreme court held that district court had no jurisdiction over the diversion agreement because defendant had not successfully completed it.
State v. Scheuerman, ___ Kan.App.2d ___, ___ P.2d ___ (No. 88,7411, filed 8/1/2003). State can require a defendant to plead to some counts of a multi-count complaint, provided it is not the charge upon which the defendant enters into a diversion. K.S.A. A. 22-2910. "Diversion delays adjudication on the diverted charge until the defendant has either: (1) failed to fulfill the terms of the diversion agreement, which results in the criminal proceedings being resumed; or (2) fulfilled the terms of the diversion agreement, which results in the case being dismissed with prejudice. K.S.A. 2002 Supp. 22-2911(a) and (b). During the delay in adjudication, "the defendant is not required to enter a plea; no trial is held; and the district court does not make a finding that the evidence substantiates the defendant's guilt." State v. Macias, 30 Kan. App. 2d 79, 82, 39 P.3d 85 (2002)." Also, if a term of a diversion agreement is illegal, the remainder should be enforced: "Even if we were to find that Scheuerman's diversion agreement for aggravated assault unlawfully contained a condition that he plead guilty to criminal threat, we could not reach the result Scheuerman requests, i.e., that the entire diversion agreement be declared void. In Petty, the Supreme Court found that a condition of diversion requiring the defendant to serve 48 hours in jail was void because it was contrary to public policy. 270 Kan. at 854. However, Petty rejected the State's argument that the entire diversion agreement had to be voided if the jail-time condition was invalidated. The opinion declared that "[c]ourts may void only those portions of a diversion agreement that violate the intent of the legislature and order enforcement of the remaining provisions." 270 Kan. 847, Syl. ¶ 6. Thus, eliminating the condition that Scheuerman plead to criminal threat would only affect the validity of the criminal threat conviction, not the aggravated assault against a law enforcement officer conviction. Even without the criminal threat plea condition, the remaining portions of the aggravated assault diversion agreement were enforceable. Scheuerman's violation of the remaining diversion conditions resulted in the subsequent, valid conviction.
Renico v. Lett, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-338, filed 05/03/10). Defendant's first trial for inter alia, first-degree murder took less than nine hours. The jury deliberated for four hours, and sent the trial court seven notes, including one asking what would happen if the jury could not agree. The judge called the jury and the attorneys into the courtroom and questioned the foreperson, who said that the jury was unable to reach a unanimous verdict. The judge then declared a mistrial, dismissed the jury, and scheduled a new trial. Defendant was convicted by the second jury, who deliberated for 3 hours and 15 minutes. Lett claimed the judge in his first trial had announced a mistrial without any manifest necessity, thus the second trial was barred by double jeopardy. The Michigan Supreme Court disagreed. It then found that the judge at Lett's first trial had not abused her discretion in declaring the mistrial, observing that the jury had deliberated a sufficient amount of time following a short, noncomplex trial; that the jury had sent several notes, including one appearing to indicate heated discussions; and that the foreperson had stated that the jury could not reach a verdict. In Lett's federal habeas petition, he contended that the Michigan Supreme Court's rejection of his double jeopardy claim was "an unreasonable application of … clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), and thus that he was not barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) from obtaining federal habeas relief. The District Court granted the writ, and the Sixth Circuit affirmed. The United States Surpeme Court reversed. The question under AEDPA is whether the Michigan Supreme Court's determination was "an unreasonable application of … clearly established Federal law," §2254(d)(1), not whether it was an incorrect application of that law, see Williams v. Taylor , 529 U. S. 362 . When a judge discharges a jury on the grounds that the jury cannot reach a verdict, the Double Jeopardy Clause does not bar a new trial for the defendant before a new jury, Perez, 9 Wheat., at 579-580.
United States v. Tafoya, ___ F.3d ___ (10th Cir. No. 08-2113, filed 02/24/2009). In a AUSA's first federal trial on felon in possession of a firearm, he asked a Sergeant an open-ended question, "what happened after that?" eliciting a response that violated an order in liminie keeping out all the other bad stuff the defendant did on the day he unlawfully possessed the weapon. Defendant was apparently a bondsman who forced his way into someone's home and battered them while armed with a shotgun. The Sergeant testified "dispatch [sent] us back out there and advised us that the bondsmen were back, and that this time they were battering some of the residents." A mistrial was declared, and Tafoya was retried. He argued that the AUSA goaded him into moving for a mistrial and the retrial was therefore barred by double jeopardy. The Circuit rejected his argument, finding no intentional goading - just a mistake. The court also held there was no error in not allowing defense counsel to put the AUSA under oath. It is sufficient for the judge to make preliminary inquiry of the AUSA before deciding whether to allow an evidentiary hearing. See also Oregon v. Kennedy, 456 U.S. 667 (1982).
http://ca10.washburnlaw.edu/cases/2009/02/08-2113.pdf
State v. Jones, ___ Kan.App.2d ___, ___ P.3d ___ (No. 92,504, unpublished opinion filed __/__2005). A jury found defendant guilty of DUI. Jones filed a motion for acquittal and new trial prior to sentencing claiming the state failed to lay sufficient foundation for the breath test. The district court granted Jones' motion for new trial. Jones moved for dismissal on double jeopardy grounds, and the district court granted his motion. The Court of Appeals sustained the state's appeal, holding that in the absence of prosecutorial misconduct, the defendant waived his right to plead double jeopardy by being granted a new trial.
Smith v. Massachusetts, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03-8661, filed 2/22/2005). Under the Double Jeopardy Clause, a judge's acquittal of a defendant, midway through a jury trial, precludes the judge from reconsidering that acquittal later in the trial.
City of Salina v. Amador, ___ Kan.App.2d ___, ___ P.2d ___ (No. 90,166, filed 3/12/2004). Amador was convicted of battery and criminal damage to property in municipal court. He appealed to district court. On the day of trial, the City's witnesses did not appear. The district court denied the City's motion for a continuance, and granted Amador's motion to dismiss without prejudice for failure to prosecute the case. The city refiled the charges in municipal court and convicted Amador again. He again appealed, and moved to dismiss on double jeopardy grounds. The district court dismissed the case, holding the city had to appeal from the prior dismissal. The Court of Appeals reversed, holding Amador's first conviction by the municipal court was vacated by Amador's appeal, and no jeopardy attached in the first appeal because no evidence was heard and no witnesses were sworn.
United States v. Andersen, 940 F.2d 593, 596 (10th Cir. 1991). It is permissible for a federal prosecutor to pursue charges against a defendant who has already been tried and convicted in state court.
City of Wichita v. Marlett, 31 Kan.App.2d 360, 65 P.3d 547 (2003). A complaint that fails to allege a DUI severity level is not defective, and city cannot amend the severity level upwards on appeal.
State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998). Failure to amend a citation to include crime severity level not fatal, but means state can only prosecute for minimum crime, here a class B misdemeanor for first offense DUI. Clarifies State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996).
State v. Francis, ___ Kan. ___, ___ P.3d ___ (No. 92087, filed 10/27//2006). The prosecutor allegedly failed to turn over evidence that a bondsman suffered from post-traumatic stress disorder and had trouble keeping the facts straight regarding his son's own murder and defendant's murder. Defense counsel argued that failure to disclose this information violated Giglio v. United States, 405 U.S.150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Court found no violation because the witnesses testimony was consistent throughout the investigation and there was no reasonable probability that had the evidence been disclosed it would have changed the outcome of the trial. Materiality is governed by Youngblood v. West Virginia, ___ U.S. ___, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006). What is required for a showing of materiality is a reasonable probability that had evidence been disclosed to the defendant, the result of the proceeding would have been different. But a demonstration that disclosure of the evidence would have resulted in acquittal is not required. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
State v. Davis, 266 Kan. 638, 972 P.2d 1099 (1999). Prosecutor’s failure to provide DUI discovery (certification of standard solution and weekly test results of the Intoxilyzer 5000 for two months preceding, month of, and month following breath test) requested by defense counsel and ordered by court resulted in dismissal of complaint with prejudice. Supreme court held documents were relevant and subject to discovery and should have been produced and mailed to defense counsel. Contempt finding was not an abuse of discretion, but dismissal of charges was.
State v. Wanttaja, 236 Kan. 323, 691 P.2d 8 (1984). Defense counsel was granted access to police files at the Hutchinson police department, but never was shown defendant's blood test. He waited until the morning of trial to request suppression. The district court and Court of Appeals held the results should be suppressed. The Supreme Court reversed, holding that suppression was too draconian a remedy where defense counsel never notified the prosecutor the test result had not been provided.
United States v. Jackson, ___ F.3d ___ (10th Cir. No. 06-2079, filed 7/9/2007). Prior uncounseled domestic violence convictions can be used to enhance a subsequent drug sentence under the federal sentencing guidelines if the prior conviction did not result in a jail sentence. Defendant was convicted in 1995 for battery, domestic violence and negligent use of a firearm. He was sentenced to 90 days, all of which was suspended, and ordered to pay a fine of $528.00 The Circuit held the conviction was valid (although the suspended sentence portion was not) and could be used to enhance the sentence. Alabama v. Shelton, 535 U.S. 654, 662 (2002); Nichols v. United States, 511 U.S. 738, 749 (1994).
State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006). Are prior municipal convictions valid to enhance a subsequent sentence when state law indicated the offense was a felony? No. Does city have subject matter jurisdiction to prosecute offenses state law makes a felony? No. Municipalities could not prosecute third or subsequent DUI violations because they were statutorily designated as felonies.
State v. DeLacruz, 258 Kan. 129, 899 P.2d 1042 (1995). Prior uncounseled battery convictions can be used to enhance a subsequent offense under the KSGA if the prior conviction did not result in a jail sentence.
State v. Priest, 239 Kan. 681, 722 P.2d 576 (1986). Where record is silent on whether defendant had or waived counsel for a first offense DUI diversion, she is presumed to not to had counsel and the diversion cannot be used to enhance a subsequent DUI sentence.
State v. Sedillos, ___ Kan. ___, ___ P.3d ___ (No. 91498, filed 6/3/2005). Due process does not require that a defendant be informed of all collateral consequences which might result from a guilty plea. One of the collateral consequences of which a defendant need not be informed is the possibility that the conviction may be used to enhance the sentence for a later crime.
State v. Allen, 28 Kan. App. 2d 784; 20 P.3d 747 (2001). An uncounseled misdemeanor conviction involving a suspended sentence or probation that does not result in incarceration may be included in a defendant's criminal history under the Kansas Sentencing Guidelines Act, even though the conviction has the effect of enhancing the defendant's sentence under the guidelines.
State v. Patterson, 262 Kan. 481, 939 P2d 909 (1997). A defendant who collaterally challenges the use of a prior conviction to enhance his or her sentence has the burden to show that he or she did not have the benefit of counsel at the prior conviction and, absent such a showing, the enhanced sentence is presumed to be regular and valid.
State v. Moore, ___ Kan. ___, ___ P.3d ___ (2001)(No. 82,411 filed June 1, 2001). Kansas cases have distinguished great bodily harm from bodily harm, noting the term "great" distinguishes the bodily harm necessary from slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained by simple battery. Disfigurement has no single technical meaning or single definition and should be considered in the ordinary sense. When an injury has been established, the question of whether it constitutes great bodily harm or disfigurement is normally a question to be determined by the trier of fact. The trial court correctly determined that the evidence would not justify a jury verdict in accord with a theory that the victim's injuries constituted bodily harm as that term is used in defining simple battery. Where the only evidence of record established that serious injuries occurred, resulting in the scarring of the victim, there was no substantial evidence applicable to the lesser degree of the offense charged.
United States v. Collins, ___ F.3d ___ (10th Cir. No. 08-3119, filed 08/04/09). Admission of all detectives' questions to defendant during an interview violated the hearsay rule, but the admission was harmless error, and the judge gave a curative instruction saying that the questions were only admitted to provide context and only the defendant's statements could be considered as evidence.
http://ca10.washburnlaw.edu/cases/2009/08/08-3119.pdf
State v. Ventris, 285 Kan. 595, 176 P.3d 920 (2008), reversed and remanded Kansas v. Ventris, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1356, filed 04/29/09). Admission of the testimony of a under cover informant (cellmate) did not violate defendant's right to counsel under the Sixth Amendment. Ventris killed Hicks. The state used a jail plant and used his testimony in rebuttal to impeach Ventris's testimony. The Kansas Supreme Court held that statements obtained in violation of the Sixth Amendment are not admissible for any purpose. Cf. Harris v. New York, 401 U.S. 22, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971).
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/94002.htm
United States v. Hernandez-Hernandez, ___ F.3d ___ (10th Cir. No. 07-2028, filed 3/21/2008). "Relevant evidence does not include the suggestion of speculative possibilities." [Citations omitted].
http://ca10.washburnlaw.edu/cases/2008/03/07-2028.pdf
State v. Jackson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94578, filed 02/29/2008). A 10-12 year old girl alleged Jackson had committed sex crimes against her. Two other juveniles and the victim's stepbrother also committed sex crimes against her. The victim had also made false allegations about sexual abuse by an SRS worker in order to obtain a different placement, and said at preliminary hearing that she told a police officer she had never been touched inappropriately. The defense sought cross-examine the victim about the two juveniles and her stepbrother. The district court allowed cross-examination about the stepbrother, but held the rape shield law, K.S.A. 21-3525 prevented testimony about the juvenile's subsequent acts and its effect on the victim's behavior. The district court also did not allow inquiry regarding the prior inconsistent statement. The Court of Appeals reversed, holding the state's theory of the case made relevant the victim's emotional and behavioral problems, and denying cross-examination about the situation involving the juveniles deprived Jackson of a fair trial.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080229/94578.htm
State v. Kemp, 30 Kan.App.2d 657, 663, 46 P.3d 31 (2002). Foundation for admissibility of a- video tape requires testimony that the tape accurately represents the events presented. Testimony that an admitted copy is identical to the original is insufficient. The foundation was lacking in this case, but admission of the tape was held to be harmless error. "In Kansas, the elements that constitute a proper foundation for the admission of an audiotape have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. State v. Williams, 235 Kan. 485, 491, 681 P.2d 660 (1984).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2002/20020510/86279.htm
State v. Araujo, ___ Kan. ___, ___ P.3d ___ (No. 94,831, filed 11/2/2007). The confrontation clause does not bar admission of testimonial statements for purposes other than establishing the truth of the matter asserted. Police responded to an assault call. The victim reported that "P.J. was threatening him." Both officers testified to the victim's statements, although the victim failed to appear in response to a subpoena. The defense objected as hearsay. The prosecution stated the statements were offered to explain why the officers focused on P.J. and to explain why they took the actions they took. Officer eventually arrested P.J. (the defendant) for drugs. The Supreme court held the statements were validly admitted for the nonhearsay purpose of explaining the course of action of an investigating officer, similar to statements made by a dispatcher. See also State v. Crowley, 220 Kan. 532, 536-37, 552 P.2d 971 (1976); State v. Ritson, 215 Kan. 742, 748, 529 P.2d 90 (1974); State v. Holloway, 214 Kan. 636, 638-39, 522 P.2d 364 (1974); State v. Vontress, 266 Kan. 248, 253, 970 P.2d 42 (1988).
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071102/94831.htm
State v. Palmer, No. 96165 filed 5/18/07. A defendant in a probation revocation hearing does not have the full panoply of rights due in a criminal proceeding . Morrisey v. Brewer, 408 U.S. 471 (1972). Thus, Crawford v. Washington, 541 U.S. 36 (2004) does not apply in probation revocation hearings. Although the district court erred in admitting an affidavit of a non-present and non-testifying probation officer without proof of the reliability of the affidavit, it did not violate the defendant's Sixth Amendment rights.
http://www.kscourts.org/kscases/ctapp/2007/20070518/96165.htm
State v. Birth, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95658, filed 5/18/07). Where a defendant claims that a testimonial hearsay statement violated his rights under the Confrontation Clause of the Sixth Amendment, Defendant must show they did not "open the door" to such testimony. When a defendant claims that a police interview tape contains false statements, it is the defendant's duty to object at trial when they tape is shown to the jury. When a defendant says "you don't even need a confession,", that is an ambiguous statement as to whether the suspect is asserting a right to remain silent or to confer with counsel, so the interrogator may ask questions to clarify, but the interrogator is not required to clarify and may continue the questioning. Although the prosecutor's statements in closing about the state's witnesses leading "them to the truth" and the defendant's statement was "swirling in the wind," crossed the bounds, it will not result in a reversal.
http://www.kscourts.org/kscases/ctapp/2007/20070518/94586.htm
Davis v. Washington, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05-5224 and 05-5705, filed 6/19/06). In No. 05-5224, a 911 operator ascertained from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis's trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording despite Davis's objection, which he based on the Sixth Amendment's Confrontation Clause. He was convicted. Lower courts held the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial.
In No. 05-5705, when police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel's bench trial for, inter alia, domestic battery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel's objection that he had no opportunity to cross-examine her.
Hershel was convicted. The lower courts held that, although Amy's affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. McCottry's statements identifying Davis as her assailant were not testimonial and were properly admitted. However, Amy Hammon's statements were testimonial. The Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing-under which one who obtains a witness's absence by wrongdoing forfeits the constitutional right to confrontation-is properly raised in Hammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon's affidavit.
http://www.law.cornell.edu/supct/html/05-5224.ZS.html
State v. Dumars, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91107, filed 3/25/2005). Where state is allowed to admit hearsay that implicates the Defendant, due process requires that the court also admit hearsay statements that excuplate the defendant. Additionally, the hearsay rule is not violated when a police officer "explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received,'" [Citation omitted.] Such evidence is not admitted to establish the truth of the information received by the officer but rather to explain the reason for his approaching the scene and his subsequent conduct. [Citation omitted]. Where, however the information as related to the jury directly or by necessary inference points to the guilt of the defendant, the testimony is inadmissible. [Citations omitted.]" Also stands for the proposition that an officer's field notes are not discoverable.
State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005). Jury should not have been shown portions of interrogation tape in which Detective Hazim expressed opinions on the suspect's lack of credibility, even if they are recommended and effective police interrogation tactics. The district court's failure to give a limiting instruction, coupled with the prosecutor's misconduct during closing argument (suggesting the defendant is a lair) require a new trial.
State v. Smith, 268 Kan. 222; 238, 993 P.2d 1213 (1999). Witness who testified as to bank records need not be the custodian of the records and can testify to and admit copies of the records pursuant to K.S.A. 60-467. Witness just needs to be familiar with the record keeping process, be knowledgeable about what records mean, and that records are consistent with the actual records. K.S.A. 60-460(m) does not require that the custodian of business records lay the foundation facts for the admission of the records into evidence. The foundation facts may be proved by any relevant evidence, and the person making the entries in the records need not be called to authenticate them if the records can be identified by someone else who is qualified by knowledge of the facts. State v. Cremer, 234 Kan. 594, 601, 676 P.2d 59 (1984).
Unites States v. Gomez, ___ F.3d ___ (10th Cir. 1999). Destruction of marijuana by government was not in bad faith, and defendant failed to establish the destroyed evidence was exculpatory, therefore dismissal was not warranted. Defendant only established that it was "potentially useful."
State v. Naramore, 25 Kan.App.2d 302, ___ P.2d ___ (1998). Guilt for even the most serious crimes can be established by circumstantial evidence.
Kuhmov Tire Co. v. Carmichael, ___ U.S. ___. 119 S.Ct. 1167, 1171 (1999). Trial court’s gatekeeper obligation under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to ensure that expert testimony is relevant and reliable applies not just to testimony based on “scientific” knowledge, but also testimony based on “technical” and “other specialized knowledge,” and when specific Daubert factors are reasonable measures of reliability in particular case, court may consider them in making reliablility determination. Trial court’s decision to admit or exclude expert testimony is subject to review under an abuse of discretion standard.
State v. Diaz & Altemay, 232 Kan. 307, 315-16, 654 P.2d 425 (1982) and Landrum v. Taylor, 217 Kan. 113, 120, 535 P.2d 406 (1975). The person who takes a photograph does not have to identify the photograph for a proper foundation to be laid.
State v. Lumley, 267 Kan. 4, ___ P.2d ___ (1999). Constitutional privilege against self-incrimination only comes into play when answers could expose the defendant to prosecution for other crimes. Thus, prosecutor can call the defendant to the stand to testify in probation revocation hearings. See also State v. Aldape, 14 Kan. App. 2d 521 (1990); People v. Bell, 694 N.E.2d 673 (Ill. 1998); U.S. v. Pelensky, 129 F.2d 63 (2d Cir. 1997); State v. King, 130 Wash. 2d 517 (1996); State v. Cass, 635 N.E.2d 225 (Ind. App. 1994); State v. Burow, 223 Neb. 867 (1986); State v. Johnson, 186 N.J. Super. 423 (1982); Wilson v. State, 621 P.2d 1173 (Okla. 1980).
State v. Trammell, ___ Kan. ___, ___ P.3d ___ (No. 88722, filed 7/2/2004). In determinating whether an eyewitness identification should be excluded, the court employs a two-step analysis. First the court must determine if the procedure used for making the identification was impermissibly suggestive. If so, the court moves to the second step and considers whether the impermissibly suggestive procedure led to a substantial likelihood of misidentification. Under the second step, the court must consider the totality of the circumstances, including the witness' opportunity to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description; the level of certainty demonstrated by the witness at the confrontation; the length of time between the crime and the confrontation; the witness' capacity to observe the event, including his or her mental and physical acuity; whether the witness' identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion; and the nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly.
State v. Percival, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89498, filed 11/21/2003). Pursuant to K.S.A. 60-421, defendants in a criminal case cannot be impeached with crimes involving dishonesty or false statement unless they first put on evidence to support their credibility. Simply taking the witness stand does not put their credibility in issue.
State v. Curry, ___ Kan. App. 2d ___, ___ P.3d ___ (2001)(No. 85,401, filed June 29, 2001). A conviction of even the gravest offense may be sustained by circumstantial evidence. Specific intent may be shown by acts, circumstances, and reasonable inferences; it need not be shown by direct proof.
Daubert v. Marrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Swept aside the standard from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) which allowed evidence that enjoyed "general acceptance" in the scientific community. Daubert factors include (1) Can the expert's theory be tested? (2) Has the analysis been subjected to peer review and publication? (3) Are there governing standards, or known or potential error rates, for the expert's techniques? and (4) Has the relevant scientific community accepted the expert's theory or technique?
General Electric Co. v. Joiner, 522 U.S. 136 (1997). Trial court decisions on admissibility of scientific evidence or testimony can only be overturned for abuse of discretion.
Kumho Tire Co. v. Carmichael, 119 S.ct. 1167 (1999). Daubert goes beyond scientific witnesses to all expert testimony involving technical and other specialized knowledge.
State v. Jamison, ___ Kan. ___, ___ P.3d ___ (No. 81644, filed July 14, 2000) Evidence of gang involvement is not evidence of a crime or civil wrong under K.S.A. 60-455, and is admissible if relevant. Also, evidence of flight is admissible to show consciousness of guilt, commission of the acts charged and the intent and purpose for which those acts were committed.
State v. Aikens, 261 Kan. 346, 383, 932 P.2d 408 (1997). Exculpatory evidence tends to disprove a fact in issue that material to guilt. Evidence is material if it "might have created reasonable doubt and affected the outcome of the trial." 261 Kan. at 383.
Immunity
Imbler v. Pachtman, 424 U.S. 409, ___ S.Ct. ___, ___ L.Ed.2d ___ (1976). Prosecutor is absolutely immun from activity associated with the initiating the prosecution and presentation of the state's case.
Buckley v. Fitzsimmons, 509 U.S. 259, ___ S.Ct. ___, ___ L.Ed.2d ___ (1993). While initiation of prosecution is protected by absolute immunity, action as an investigator searching for clues and corroborating facts that might give probable cause for an arrest is only entitled to qualified immunity.
State v. Patton, ___ Kan. ___, ___ P.3d ___ (No. 98,470, filed 2/1//2008). In order to give meaning to and allow the full exercise of an alleged fugitive's statutory right to counsel and right to raise defenses in an extradition proceeding under K.S.A. 22-2701 et seq., an alleged fugitive may challenge whether he or she possesses a present ability to consult with an attorney with a reasonable degree of rational understanding on the issues of whether he or she (1) is the person named in the request for extradition and (2) is a fugitive.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080201/98470.htm
United States v. Curtis, ___ F.3d ___ (10th Cir. No. 02-5047, filed 9/17/2003). In court identifications were not unduly suggestive. Testimony was that a black man with gapped teeth robbed several businesses. Fact that defendant was the only black man in the courtroom during most of the trial, and order for him to display his teeth to the jury were not unconstitutionally suggestive.
State v. Wilson, 267 Kan. 530, 986 P.2d 365 (1999). An in-court identification by a trained observer (a police officer) is sufficient to establish probable cause in a preliminary hearing, even though the identification may have been influenced by a suggestive photo lineup three days after the defendant's arrest. When there is conflicting testimony at a preliminary hearing, the court must accept the version of the testimony that is most favorable to the state (quoting State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 (1996)).
State v. Reyes, 794 P.2d 853, 1988 Kan.App. LEXIS 775 (unpublished opinion filed 11/18/1988). The district court did not err in denying the defendant's motion for acquittal at the close of the state's case based on lack of an in-court identification of the defendant. Defendant was sufficiently identified for double jeopardy to attach. There is no requirement that a witness identify a defendant by pointing at him in open court if there is no possibility of mistaken identity, citing with approval State v. Seitzinger, 180 Mont. 136, 589 P.2d 655 (1979).
State v. Ward, 710 P.2d 29, 1985 Kan. LEXIS 533 (unpublished opinion filed 12/6/1985). An extrajudicial identification is material even if the witness cannot make an in-court identification, and the identification in this case was not based an on unduly suggestive photographic lineup. "The means whereby or the manner in which an identification is made related to the weight and sufficiency of the evidence rather than its admissibility." 710 P.2d at 21-22 (quoting State v. Hill, 193 Kan. 512, 516, 394 P.2d 106 (1994)). The court did not err by allowing an eyewitness to testify that defendant's build was "very similar" to the robber's build, despite the lack of an in court identification by that witness.
Ineffective Assistance of Counsel
Roe v. Flores-Ortega, ___ U.S. ___ (No. 98-1441, filed 2/23/00). Strickland v. Washington, 466 U.S. 668, provides the proper framework for evaluating a claim that counsel was constitutionally ineffective for failing to file a notice of appeal. Under Strickland, a defendant must show (1) that counsel's representation "fell below an objective standard of reasonableness," id., at 688, and (2) that counsel's deficient performance prejudiced the defendant, id., at 694. Pp. 4-15. (a) Courts must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," 466 U.S., at 690, and "[j]udicial scrutiny of counsel's performance must be highly deferential," id., at 689. A lawyer who disregards a defendant's specific instructions to file a notice of appeal acts in a professionally unreasonable manner, see Rodriquez v. United States, 395 U.S. 327, while a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following those instructions, his counsel performed deficiently, see Jones v. Barnes, 463 U.S. 745, 751. The Ninth Circuit adopted a bright-line rule for cases where the defendant has not clearly conveyed his wishes one way or the other; in its view, failing to file a notice of appeal without the defendant's consent is per se deficient. The Court rejects that per se rule as inconsistent with Strickland's circumstance-specific reasonableness requirement. The question whether counsel has performed deficiently in such cases is best answered by first asking whether counsel in fact consulted with the defendant about an appeal. By "consult," the Court means advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant's wishes. Counsel who consults with the defendant performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions about an appeal. If counsel has not consulted, the court must ask whether that failure itself constitutes deficient performance. The better practice is for counsel routinely to consult with the defendant about an appeal. Counsel has a constitutionally imposed duty to consult, however, only when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. One highly relevant factor will be whether the conviction follows a trial or a guilty plea, because a plea both reduces the scope of potentially appealable issues and may indicate that the defendant seeks an end to judicial proceedings. Even then, a court must consider such factors as whether the defendant received the sentence bargained for and whether the plea expressly reserved or waived some or all appeal rights. Pp. 5-9.
(b) The second part of the Strickland test requires the defendant to show prejudice from counsel's deficient performance. Where an ineffective assistance of counsel claim involves counsel's performance during the course of a legal proceeding, the Court normally applies a strong presumption of reliability to the proceeding, requiring a defendant to overcome that presumption by demonstrating that attorney errors actually had an adverse effect on the defense. The complete denial of counsel during a critical stage of a judicial proceeding, however, mandates a presumption of prejudice because "the adversary process itself" has been rendered "presumptively unreliable." United States v. Cronic, 466 U.S. 648, 659. The even more serious denial of the entire judicial proceeding also demands a presumption of prejudice because no presumption of reliability can be accorded to judicial proceedings that never took place. Respondent claims that his counsel's deficient performance led to the forfeiture of his appeal. If that is so, prejudice must be presumed. Because the defendant in such cases must show that counsel's deficient performance actually deprived him of an appeal, however, he must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed. This standard follows the pattern established in Strickland and Cronic, and mirrors the prejudice inquiry applied in Hill v. Lockhart, 474 U.S. 52, and Rodriquez v. United States, 395 U.S. 327. The question whether a defendant has made the requisite showing will turn on the facts of the particular case. Nonetheless, evidence that there were nonfrivolous grounds for appeal or that the defendant promptly expressed a desire to appeal will often be highly relevant in making this determination. The performance and prejudice inquiries may overlap because both may be satisfied if the defendant shows nonfrivolous grounds for appeal. However, they are not in all cases coextensive. Evidence that a defendant sufficiently demonstrated to counsel his interest in an appeal may prove deficient performance, but it alone is insufficient to establish that he would have filed the appeal had he received counsel's advice. And, although showing nonfrivolous grounds for appeal may give weight to the defendant's contention that he would have appealed, a defendant's inability to demonstrate the merit of his hypothetical appeal will not foreclose the possibility that he can meet the prejudice requirement where there are other substantial reasons to believe that he would have appealed.
Smith v. United States, 348 U.S. 147, 152 (1954). An accused cannot be convicted solely on the basis of his own uncorroborated confession. See also United Sates v. Treas-Wilson, 3 F. 3d 1406, 1408 (10th Cir. 1993)(same).
Pottawattamie County, IA v. McGhee, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1065, cert. dismissed 01/04/10). Appealed from United States Court of Appeals, Eighth Circuit (Nov. 21, 2008). In 2005, Curtis W. McGhee and Terry J. Harrington, both convicted of murder in 1978, sued Pottawattamie County, Iowa, and former county attorneys Joseph Hrvol and David Richter under 42 U.S.C. § 1983, alleging, inter alia, that the Pottawattamie prosecutors coerced false testimony from third party witnesses and then introduced that testimony in their murder trials. The prosecutors argued that they were immune from the lawsuit based on the doctrine of absolute immunity, but both the district court and the Eighth Circuit disagreed. The Supreme Court's granted review, but dismissed the petition after argument. Settled?
Van de Kamp and Livesay v. Goldstein, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-854, 01/26/09). Thomas Goldstein was convicted of a 1979 murder on the strength of a jailhouse informant's testimony that Goldstein had confessed to the crime. Goldstein lived nearby in a rented garage but there was no physical evidence to link him to the killing and the weapon was never found. The informant testified that he received no benefit in return, but evidence that came to light later suggesting he had struck a deal to get a lighter sentence. Two federal judges and a federal appeals panel eventually ruled that Goldstein was wrongly convicted and he was freed in April 2004. Goldstein served 24 years in prison before his murder conviction was overturned. Goldstein sued former District Attorney John K. Van de Kamp, who later became California attorney general, and his former chief deputy, Curt Livesay, claiming that as supervisors they had a policy of relying on jailhouse informants even though it sometimes led to false evidence. The Supreme Court reversed, holding the prosecutors were protected by absolute immunity.
http://www.supremecourtus.gov/opinions/08pdf/07-854.pdf
Jurisdiction - Municipal Courts
City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997). Cities may not prosecute third or subsequent DUI offenses in municipal court because state law (K.S.A. 1996 Supp. 8-1567(f) makes such offenses felonies. Pursuant to K.S.A. 22-2601, felonies may only be prosecuted in the district courts. K.S.A. 1996 Supp. 8-1567(m) does not allow cities to omit the severity classification of a crime designated as a felony in a state statute that uniformly applies throughout the state and punish those offenders in municipal court.
State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98707, filed 09/19/08/08). Approximately one month after a suspect's arrest for having sex with his daughter, Defendant took the daughter to New Mexico so she wouldn't be able to testify. Johnson pled to aggravated intimidation of a witness, but then sought to withdraw her plea, saying her crime was committed in New Mexico, not Kansas. The Court rejected her argument finding the crime was partially committed in Kansas, and thus jurisdiction and venue were proper under 21-3104 and 22-2602.
http://www.kscourts.org/Cases-and-Opinions/Opinions/ctapp/2008/20080919/98707.htm
Guillory v. State, ___ Kan. ___, ___ P.3d ___ (No. 96,610, filed 11/2/2007). State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), does not apply to excuse a late-filed notice of appeal from summary denial of a K.S.A. 60-1507 motion. Ortiz only applies in direct appeals or two other limited circumstances.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071102/96610.htm
State v. Woolverton, 284 Kan. 59, 159 P.3d 985 (2007). Defendant and his baby's mama became involved in a telephone disagreement when defendant was late for visitation. Defendant, who was in Missouri, called the baby's mama in Overland Park and called her a "fucking whore" and threatened to "fucking kill her." He was convicted of criminal threat and phone harassment. On appeal the Supreme Court held that (1) defendant's prior criminal threat conviction was improperly admitted at trial but the error was harmless; (2) Kansas had jurisdiction to prosecute even though the threats were uttered in Missouri and (3) no Miranda violation occurred because defendant was not in custody when interviewed in the stairwell of his apartment, even though the detectives had stated they would seek a warrant if he did not cooperate. Detectives informed him that he would not be arrested and could return to his apartment after the interview.
http://www.kscourts.org/kscases/supct/2007/20070608/93751.htm
State v. Hendrix, ___ Kan. ___, ___ P.3d ___ (No. filed 2009). Defendant was not entitled to a self-defense instruction where he used no actual force. Defendant and his sister were visiting their mom in the hospital when an argument broke out. Under defendant's theory, she approached him aggressively and he threatened to "break her neck." According to the victim, Defendant pulled a knife on her and threatened to kill her. Both parties agreed on the complete absence of physical force by either. Defendant requested PIK Crim. 3d 54.17 (self defense) in his prosecution for criminal threat. The Supreme Court held that the self defense instruction should be given only where the defendant uses actual, not just threatened force. Davis and Luckert dissent.
http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2009/20091023/97323.pdf
State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009). Inclusion of the language "[a]nother trial would be a burden on both sides," in PIK Crim. 3d 68.12 is error, and the committee is instructed to strike it from the instruction.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090206/99533.htm
State v. Richardson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98.572, filed 10/24/08). Richardson fled when a police officer tried to stop him for failing to signal a turn. He committed 14 violations during the pursuit, which was captured on video and shown to the jury. Richardson alleged the jury instruction for felony fleeing and eluding should have defined the five or more traffic violations he allegedly committed during the pursuit. The Court of Appeals agreed, but found that in light of the other evidence in this case, the court's failure to do so was harmless. PIK Crim. 3d. 70.09 should suggest defining the violations and moving violations. The Court also rejected Richardson's arguments that fleeing, reckless driving and driving while suspended were multiplicitous, and his argument that the court should have instructed on the five moving violations as lesser included offenses.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081024/98572.htm
State v. Lewis, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94,837, filed 7/13/2007). Defendant failed to establish that Sedgwick county's failure to compel jury service caused a disparity in the representation of minorities in the community. Additonally, the district court did not err in affirming a Batson challenge to a young, unemployed nursing student who visited the crime scene four times per week.
http://www.kscourts.org/kscases/ctapp/2007/20070713/94837.htm
Silvers v. State, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,869, filed 1/11/2008). "Clearly, criminal defendants are not entitled to have the jury instructed on jury nullification, but the jurors in a criminal case have the clear ability to disregard both the rules of law and the evidence in order to acquit a defendant." (Syl. ¶ 3, quoting State v. Mclanahan, 214 Kan. 208, 215-17, 510 P.2d 153 (1973)). When jury nullification is presented haphazardly or in preference for other defenses with a likelihood of success, appellate courts have concluded such attorneys were ineffective. In this case, Defendant and a friend plied a 13-year old female victim with alcohol, marijuana and an unidentified pill. The victim passed out and when she awoke, one man was penetrating her vaginally and the other was about to place his penis in the victim's mouth. The victim could not identify which man was on top of her. Defendant's semen was located in the victim's anus and on her underwear. Defendant was charged with rape of a child under 14 and aggravated criminal sodomy with a child under 14. He admitted to anal sex with the victim. His defense was that he thought the victim was old enough and that she consented. The jury acquitted him of rape, but convicted him of aggravated criminal sodomy. The court could not conclude that trial counsel's nullification strategy was ineffective.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080111/96869.htm
State v. Bowers, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,805, filed 09/25/09). Counsel request for a bench trial is not a valid waiver of the right to jury trial. A defendant must either waive in open court or in writing.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090925/100805.htm
State v. Jones, 19 Kan.App.2d 982, 984, 99 P.3d 1141 (1994). Defendant has a right to a jury trial if the offense charged is punishable by imprisonment for more than six months, even if the request is late when considered by the seven-day standard in K.S.A. 22-3404(1). If the right to a jury trial exists, any waiver must a personal waiver on the record or in writing. See also State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975).
In the Matter of L.M., ___ Kan. ___, ___ P.3d ___ (No. 96,197, filed 6/2008). Juvenile offenders have a constitutional right to a jury trial.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2008/20080620/96197.htm
Hartman v. Moore, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 04–1495, filed 4/26/2006). A plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges. Prosecutors are entitled to absolute immunty.
http://supct.law.cornell.edu/supct/html/04-1495.ZO.html
Bezona v. Tomson, 25 Kan.App.2d 210, ___ P.2d ___ (1998). Element of claim are: (1) The defendant initiated, continued, or procured the proceeding of which complaint is made; (2) the defendant in doing so acted without probable cause; (3) the defendant acted with malice; (4) the complained-of proceedings terminated in favor of the plaintiff; and (5) plaintiff sustained damages.
State v. Aguilar, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,992 filed 10/02/09). In order to assess a lab fee pursuant to K.S.A. 2008 Supp. 28-176(a), the defendant must be charged with and convicted of a drug-related offense.
http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2009/20091002/100992.pdf
State v. Coburn, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,210, filed 2/1/2008). The district court erred in allowing one trial on six counts of aggravated indecent liberties with a child and one count of sexual exploitation of a child that occurred on a different date. The former charges involved allegations of improper touching of minor granddaughters, while the latter involved illegal possession of child pornography. The district court should have granted a motion to sever because the offenses were not related and evidence of the latter may have prejudiced the jury on the former.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080201/96210.htm
Multiple Acts - Juror Unanimity Required
State v. Nels F. Baatrup, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,186, filed 10/03/08). The state charged Baatrup with both DUI under 8-1567 (a)(2) (over 0.08) and (a)(3) (incapable of safetly driving). The court instructed PIK Crim. 3d 70.01-B, instructing the jury it was one crime and to sign the verdict form upon which they agreed. The jury signed both. The state argued that State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007) didn't require unanimity so long as the jury agreed the defendant was guilty. The Court rejected the argument, holding that unanimity is required on a multiple acts case as opposed to a alternative means case. Stevens was an alternative means case (operating v. attempt to operate).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081003/98186.htm
State v. Harris, ___ Kan. ___, ___ P.3d ___ (No. 95,723, filed 7/13/2007). Defendant went on a crime spree killing four people in various locations on the same date. He was charged with four counts of capital murder based on killing more than one victim and was convicted of three of them. The Supreme Court held that two of the convictions were multiplicitous and he could only be convicted of one count of capital murder. It did, however, hold that his confession was voluntary despite detectives encouragement to tell the truth. Defendant voluntarily turned himself in, had an 11th grade education, gave appropriate responses and did not appear to be under the influence. He was interviewed for about 2.5 hours and was given breaks. He was not restrained. He was told that his cooperation would be brought to the DA's attention and it was.
http://www.kscourts.org/kscases/supct/2007/20070713/95723.htm
City of Wichita v. Edwards, 23 Kan.App.2d 962, 939 P.2d 942 (1997). Evidence required to prove ethnic intimidation was also necessary to prove battery and disorderly conduct, therefore convictions of all three are multiplicitious.
http://www.kscourts.org/kscases/ctapp/1997/19970523/75213.htm
Steffes v. City of Lawrence, 284 Kan. 380, 385, 160 P.3d 843 (2007). The interpretation of statutes and ordinances is a question of law. See also City of Wichita v. Hackett, 275
Kan. 848, 850, 69 P.3d 621 (2003). "The fundamental rule of statutory interpretation is that a court must give effect to the intent of the [governing body] as expressed." Polson v. Farmers Insurance Co. Inc., ___ Kan. ___, Syl. ¶ 2, 200 P.3d 1266 (2009). If the language of a statute or ordinance “is plain and unambiguous, a court must give effect to that language rather than determine what the law should be, speculate as to [the governing body’s] intent, add something not readily found in the statute, resort to canons of statutory construction, or consult legislative history.” Id.
Ordinance, Conflict with Statute
State v. Graham, 19 Kan.App.2d 341, 343, 868 P.2d 1245 (19994). K.S.A. 8-2001 requires all city traffic ordinances to be in conformity withy the state traffic statutes unless expressly authorized. Thus, the court must consider all city traffic ordinances in substantial conformity with the equivalent state traffic statutes. Accordingly, a city traffic ordinance of this state sthall be accorded a presumption to substantial conformity with its equivalent state statute until shown otherwise. The defendant has the burden of making a prima facie showing of the nonconformity of the city ordinance with the state statute.
State v. Curtis, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,474, filed 06/19/09). Curtis was sentenced to probation on drug charges, then violated on four different occasions. The state timely filed three motions to revoke, but asked the court to dismiss proceedings on the first two and never acted on the third. The state filed one motion after Curtis' probation term expired, and the district court eventually granted it. The Court of Appeals held the district court had no jurisdiction to act on the motion because the state never set the third one for action, violating Curtis' right to due process.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090619/99474.pdf
State v. White, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99865, filed 05/08/09). Judge Dowd revoked White's probation for failure to pay without considering whether the probationer willfully refused or was responsible for the failure to pay or whether the probationer made a bona fide effort to acquire the resources to pay. Imprisonment may be used as a means to enforce collection of fines or court costs or restitution when the probationer willfully refuses to pay, although he has the means to pay, or he does not make a bona fide effort to acquire the resources to pay. If, however, the sentencing court determines that the probationer made a bona fide effort or is not at fault in failing to pay, the court should then consider alternative measures of punishment to imprisonment. Only if the alternative measures are inadequate to meet the State's interests in punishment and deterrence may the court imprison a probationer despite his bona fide effort to pay. Alternatives to imprisonment that have been suggested include reduction of the fine imposed, extension of time to pay, and performance of public service tasks in lieu thereof. Revocation reversed.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090508/99865.htm
State v. Uhlig, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96663, filed 11/2/07). Uhlig was on probation, and a condition allowed warrantless searches by a court services officer (CSO). The CSO found ecstasy in Uhlig's bedroom. Uhlig claimed a Fourth Amendment violation. The Court of Appeals held the search was justified by reasonable suspicion since Uhlig delayed the officer's entry into his bedroom. The Court also held that Uhlig was not in custody, so no Miranda warning was required.
http://www.kscourts.org/Cases-and-Opinions/Opinions/ctapp/2007/20071102/96663.htm
State v. Baldwin, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95402, filed 1/26/2007). Once probation expires without being extended, a district court has no jurisdiction to revoke it. Although the state timely requested a revocation, the judge said he would allow the defendant to "continue . . . in community corrections," and did not extend probation. Thus, probation expired 24 months after imposition of sentence, despite a journal entry saying probation was revoked and defendant was ordered to Labette. The spoken sentence controls over the written sentence.
State v. Williams, 20 Kan.App.2d 142, 884 P.2d 743 (1994). A district court has jursidition to revoke probation as long as proceedings are commenced before the expiration of the probation term.
State v. Garcia, ___ Kan.App.2d ___, ___ P.3d, ___ (No. 89006, filed 3/14/2003). District court revoked, then reinstated probation on condition that defendant successfully complete boot camp. He graduated from boot camp, but with marginal results. District court determined defendant had not complied with probation conditions and sent defendant to prison. Court of appeals held that graduation from boot camp equals successful completion, and absent any other violation, district court had no jurisdiction to revoke probation. Revocation was reversed and case remanded with directions to reinstate probation.
State v. Patton, 37 Kan.App.2d 166, Syl. ¶ 4, 152 P.3d 1262 (2007). Written waiver of appeal in a plea agreement is enforceable when given in exchange for a sentence reduction and dismissal of additional charges.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20070202/95860.htm
State v. Williams, 37 Kan.App.2d 404, 153 P.3d 566 (2007). K.S.A. 21-4721(c) precludes review a presumptive sentence agreed to in a plea bargain.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20070316/95155.htm
Porter v. State, 37 Kan.App.2d 220, Syl. ¶ 4, 152 P.3d 89 (2007). A defendant is presumed to have known his or her criminal history when entering into a plea agreement.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20070223/95975.htm
State v. Chetwood, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,716, filed 11/2/2007). The state breached its plea agreement to recommend residential community corrections when the prosecutor introduced a community corrections officer to the court who recommended a prison sentence.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071102/96716.htm
McPherson v. State, 38 Kan.App.2d 276, ___ P.3d ___ (No. 96,314 filed 8/10/2007). Defendants can plea to hypothetical crimes as long as they benefit. They must (1) be initially brought into court on a valid pleading; (2) receive a beneficial plea bargain; and (3) voluntarily and knowingly enter into the plea. McPherson was charged with attempted 1st degree murder and kidnapping and was facing a maximum sentence of 283 months. He pled to attempted second degree unintentional murder and received a 102 month sentence. He later moved to set aside the plea alleging that Kansas does not recognize second degree unintentional murder. See North Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
http://www.kscourts.org/kscases/ctapp/2007/20070810/96314.htm
United States v. Scott, ___ F.3d ___ (10th Cir. No. 05-6082, filed 7/31/2006). The prosecutor agreed to a base level 23 offense (transportation of a juvenile in interstate commerce for prostitution) resulting in a presumptive 46 to 57 month sentence. The plea agreement stated: "Based upon the information that is known to the parties on the date that this agreement is executed, the positions they expect to take at sentencing with respect to the United States Sentencing Guidelines will include that (1) the offense occurred before April 30, 2003; (2) the offense involved a commercial sex act and the use of coercion; (3) the victim's age was between 12 and 16 yers; and (4) the defendant should receive a 2 level downward adjustment for acceptance of responsibility." Before sentence, the trial court sua sponte notified the parties that it was considering two other increases for a vulnerable victim and a leadership role in the offense. The prosecutor then filed a "Motion for Upward Departure." The court applied the two increases which adjusted the range to 70-87 months, and the court imposed a 120 month sentence. The 10th Circuit, one judge dissenting, held that the government breached its plea agreement by arguing for sentence enhancements, and reversed the sentence. It agreed with the defendant's argument that the plea terms "implied that the government would not argue for other sentence enhancing factors, or at least that such an inference should be drawn because that was his reasonable expectation from the agreement."
State v. Boley, ___ Kan.App.2d ___, ___ P.2d ___ (No. 91804, filed 8/20/2004). Where a defendant has successfully challenged a sentence for a conviction subject to a plea on the basis that the sentence impermissibly increases the defendant's term of imprisonment beyond that permitted by law (based on State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004)), and resentencing would effectively frustrate the State's purpose in entering the plea agreement (the parties agreed on severity level 1 offense as opposed to a severity level 3), the State may, in its discretion, withdraw from the plea agreement or choose to perform under the plea agreement as modified.
Furthermore, where there is a mistake of law in a plea agreement, the risk of the mistake may fall to the State, which is presumed to be in a better position to know the applicable law. See United States v. Barron, 172 F.3d 1153 (9th Cir. 1999); Coy v. Fields, 200 Ariz. 442, 27 P.3d 799 (App. 2001). Under the circumstances of this case, the State could not know our Supreme Court would rule that K.S.A. 65-4159(a) and K.S.A. 65-4161(a) proscribed identical conduct. As such, it is inequitable to apply such a presumption in this case.
. . .
If the State chooses to withdraw from the plea agreement, double jeopardy provides no impediment to refiling such charges dismissed from the original complaint. "Upon restoration of the status quo ante, the plea agreement no longer [binds] the parties. Therefore, no obligation [remains] which [prohibits] the government from reinstating the previously dismissed charges." Bunner, 134 F.3d at 1005. See United States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998); United States v. Podde, 105 F.3d 813, 817 (2nd Cir. 1997); Caban, 318 Ill. App. 3d at 1090; Mazzone, 212 W.Va. at 372-73.
http://198.252.9.30/kscases/ctapp/2004/20040820/91804.htm
State v. McCray, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89,726, filed 4/9/2004). In determining whether good cause has been shown to permit withdrawal of a plea under K.S.A. 2003 Supp. 22-3210(d), the district court must consider the following factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced mistreated or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. Here the plea agreement was reviewed by a judge prior to entering it. It is the better practice for a judge not to get involved in any plea negotiations or discussions even if the judge recuses himself from further judicial duties in the matter. And while courts should take special care when taking a plea from a mentally retarded person, "the operation of the criminal justice system depends on a predictable quantity of plea bargaining, and for many defendants, a plea bargain appears to be the only substantial hope of reducing their sentence." http://www.kscourts.org/kscases/ctapp/2004/20040409/89726.htm
State v. Compton, 233 Kan. 690, 695, ___ P.2d ___ (19__). The anti-plea bargaining statute does not prohibit pleas when the purpose the plea bargain - and its ultimate effect - is not to permit the accused to avoid the mandatory DUI penalties.
State v. Loggins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,796, filed 10/17/08). While a certified journal entry is the best evidence of a prior conviction, it is not the only permissible form of evidence. Here, authenticated printouts of court computer screens that contained defendant's identifying information, the crime charged, the statute violated, the date of the offense, the plea, verdict and type and name of defense counsel were sufficient to prove prior convictions.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081017/98796.htm
State v. Pruitt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,039, filed 06/18/09). Pruitt was denied a fair trial by the prosecutor violating an order in limine on how a police officer witness knew Pruitt (based on a prior incident), a Doyle violation, and by the giving of a misleading Allen instruction (see State v. Salts) over the defendant's objection. Additionally, cumulative error infected the trial.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090619/100039.pdf
Douglas v. Workman, ___ F.3d ___ (10th Cir. No. 01-6094 filed 03/26/09). In a federal habeas petition alleging prosecutorial misconduct in a capital matter, the denial of the petition is reversed, where there was a reasonable probability that the outcome of Petitioner's trial would have been different had the prosecution not suppressed evidence of a deal made with a prosecution witness. Smith, a key prosecution witness, recanted his testimony identifying Douglas as one of the shooters in a drive-by shooting while Douglas's case was on appeal, and alleged the prosecutor had suborned perjury. Douglas also alleged the prosecutor covered up favorable treatment of Smith in exchange for Smith's testimony. There was sufficient evidence that the prosecutor failed to disclose exculpatory evidence and a deal with Smith to grant the habeas petition. See Napue v. Illinois, 360 U.S. 264 (1959); Brady v. Maryland, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150, 153 (1972).
http://ca10.washburnlaw.edu/cases/2009/03/01-6094.pdf
In Re Campbell, ___ Kan. ___, ___ P.3d ___ (No. 101,116, filed 01/16/09). Prosecutor showed pictures of underage drinkers and a couple involved in a sex act to the parents of the children to "wake them up," as to what was occurring at teenager drinking parties. Although the disciplinary administrator and respondent agreed on public censure, the hearing panel recommended a 90-day suspension. The Supreme Court went even farther and imposed a six-month suspension.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090116/101116.htm
State v. Blomquist, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95995, filed 02/29/2008). Defendant was convicted of 78 counts of inappropriate sex with a retarded 12-year old boy. The prosecution's theory relied, in large part, on proving the defendant was homosexual, and it introduced evidence that the defendant never dated women. The Court of Appeals held the prosecutor's actions were gross and flagrant misconduct and given the prejudicial character of homosexuality, was an appeal to passion, prejudice and fear. It held these actions deprived the defendant of a fair trial and reversed the convictions.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080229/95995.htm
Hamilton v. Mullin, ___ F.3d ___ (10th Cir. No. 04-5067, filed 01/24/2006). Although prosecutor crossed the line in closing argument, the error was harmless beyond a reasonable doubt and did not warrant habeas relief. Where a prosecutors remarks concern matters that could have been explained only by the accused, they give rise to an innuendo that the matters were not explained because the accused did not testify and thus amount to indirect comment on the defendant's failure to testify. Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001).
State v. Henderson, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89545, filed 8/27/2004). Quoted text follows:
Closing Argument
Henderson criticizes statements made by the prosecutor during closing argument. Though Henderson did not object at the time, the trial court has the duty to protect his right to a fair trial by preventing prosecutorial misconduct regardless of whether a timely objection was made. State v. Holmes, 272 Kan. 491, 498, 33 P.3d 856 (2001). Consequently, our standard of review is the same whether or not an objection was made at trial. Henderson has the burden of establishing that the claimed prosecutorial misconduct denied him a fair trial under the Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003).
We must first determine whether the prosecutor's comments were outside the wide latitude that a prosecutor is allowed when discussing the evidence. If they exceed these bounds, we then must determine whether they were so gross and flagrant as to prejudice the jury against Henderson and deny him a fair trial. 275 Kan. at 121. If we reach this second step we must determine whether the prosecutor's comments show ill will, whether the trial court sanctioned the comment, and whether the evidence against Henderson was so overwhelming that the prosecutor's misconduct had little or no likelihood to have changed the result of the trial. State v. Scott, 271 Kan. 103, 115, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
The prosecutor argued in summation:
"And there is something about this case that's just could kind of tough. And part of it is the nature of kids. Nature gives babies, most babies protection. Deer, a baby fawn is born without any scent and has color spots on its coat. That's how it gets protection. Birds, they hatch out eggs up in trees where they can't be reached. They say that a gorilla baby when it's born has the strength of an adult male. Horses jump right up and they run away. Most animals have a defensive mechanism immediately. Baby rattlesnakes have just as much poison as adult rattlesnakes. Except for babies that are born to humans. They're born without any hair, any type of warmth. They're stinky; can't feed themselves. Can't walk. If you leave them alone, they'll die.
". . . Those babies rely upon their parents to protect them for life. That's one of the - - we got many that - - that's one of the basic rules of life. That's what is tough about this case. It is because you have got a father who betrayed that trust. And the fact that he might be low-functioning or illiterate doesn't excuse that.
"The evidence in the case is overwhelming the defendant committed those crimes. The facts establish it. The law establishes it, and we ask that you find him guilty. Thank you."
In State v. Rodriguez, 269 Kan. 633, 643, 8 P.3d 712 (2000), the court stated:
"During closing argument, an attorney is given wide latitude in the language and manner of presenting argument and may indulge in impassioned bursts of oratory and may use picturesque speech as long as he or she does not refer to facts not disclosed by the evidence. [Citation omitted.]"
Henderson claims the prosecutor improperly referred to facts outside the evidence when he discussed the defense mechanisms of baby animals and the trust relationship between human babies and their parents. We are not surprised that evidence regarding baby animals or trust relationships was never presented at trial.
The charges against Henderson were tried to a jury of 12. One of the many reasons we hold inviolate the right to trial by jury is our understanding that the knowledge, experience, and judgment of one person is most often inferior to that of 12 members of the community. In seeking out members of the community for jury service, the courts do not limit the search to inhabitants of monasteries or nunneries or others who live a cloistered life. An important attribute of a jury is the collective common knowledge and wisdom it possesses from the varied experiences of its members during their many years on this earth. Matters within the common knowledge of mankind are a proper subject for comment during the summation. See State v. Jones, 197 Ariz. 290, 306, 4 P.3d 345 (2000); People v. Strozzi, 712 P.2d 1100, 1105 (Colo. App. 1985); Hall v. State, 259 Ga. 412, 414, 383 S.E.2d 128 (1989); McLaughlin v. State, 780 P.2d 964, 968 (Wyo. 1989). The prosecutor, through these references in summation, sought to tap into that common knowledge and experience which is one of the core values of our jury system.
Granted, the prosecutor's statement about the strength of a baby gorilla or the venom of a baby rattlesnake may test the limits of our common knowledge. However, our condemnation of a prosecutor's arguing facts outside the record is based on the improper suggestion to the jury that there are facts directly bearing on the case that the jury should know but for some reason were not brought out in the evidence. That is not the case with references to baby gorillas and rattlesnakes. For rhetorical purposes, the prosecutor could just as well referred to the self-protective horn on the head of a baby unicorn.
Oratory is the essence of the summation. It brings to the courtroom the exercise of eloquent and effective public speaking. The constitutional insistence upon a fair trial for the accused does not demand that we ban oratory from the courtroom. To strip trial lawyers of analogies, similes, allusions (be they historic, poetic, literary, or scientific), and other rhetorical devices would reduce them to little more than green-eye-shaded bookkeepers, recounting for others the facts and figures they have accumulated during the course of the trial. We are taught in law school that a summation is more than the mere recital of facts adduced at trial. The trial lawyer's role in summation is to bring order to the facts presented at trial, place them in a meaningful context, and out of this collection of bits and pieces construct the whole of a case. Melvin Belli observed:
"If the tree, with its main branches, is painted, the leaves will be supplied by the brushes of the jurors, but if only the leaves are illustrated, they may fall into a confused mass where there is no support from the main branches." 5 Belli, Modern Trials § 65.4, p. 75 (1982).
We sometimes think of courtroom oratory as a quaint vestige of the past. It seems to have enjoyed a more honored place in past pronouncements:
"[No lawyer] is required to forego all the embellishments of oratory, or to leave uncultivated the field of fancy. It is his time-honored privilege to 'drown the stage in tears, make mad the guilty and appal the free, confound the ignorant, and amaze, indeed, the very faculties of eyes and ears.'" State of Iowa v. Burns, 119 Iowa 663, 94 N.W. 238 (1903).
Further, our modern courtroom sensibilities make us wince at remarks such as expressed by counsel during his summation in Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341 (1897), a breach of marriage contract and seduction case, in which he referred to defendant as a "fiend" and a "hell-hound." (The Tennessee Supreme court noted that "other language could have been used, no doubt, equally as descriptive, and not so vituperative." 98 Tenn. at 350.) And we may look askance at the approval of counsel's tearful plea to the jury. ("Tears have always been considered legitimate arguments before a jury, and . . . we know of no rule or jurisdiction in the court below to check them. It would appear to be one of the natural rights of counsel, which no Court or constitution could take away." 98 Tenn. at 351.) Nevertheless, the ancient role of rhetoric in final argument survives. We note an early expression of its importance in VanDyke v. Martin, et al., 55 Ga. 466, 470 (1875):
"[The summation] is not a mere ornamental fringe, hung upon the border of a trial. . . . The attorneys in the cause are not mere carriers to bring in materials for constructing the edifice; they have a right, as representing the parties, to suggest where every important stone should be laid, and to assign reasons, drawn from legitimate sources, in support of their suggestions."
Over the decades, courts have become increasingly sensitive to the impact of improper argument upon an accused's right to a fair trial ― thus, our concern with unwarranted wanderings from the record. Nevertheless, we have not left the trial lawyer so emaciated that he or she may no longer refer to the blueness of the sky or the breadth of the firmament without first calling a meteorologist or a cosmologist as an expert witness.
Modern courts have allowed references in summation from sources as disparate as the Bible (Mayberry v. State, 603 P.2d 1150 [Okla. Crim. 1979]; People v. Wash, 6 Cal. 4th 215, 24 Cal. Rptr. 2d 421, 861 P.2d 1107 [1993]) and the Ann Landers advice column (Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64 [8th Cir. 1988]). In the case before us, we find that the prosecutor's comments did not exceeded these time-honored rhetorical bounds now tempered with attentive concern for Henderson's right to a fair trial.
United States v. Oliver, ___ F3d ___ (10th Cir. No 00-4191, filed 11/14/ 2001). Prosecutor's single question of whether defendant invoked his Miranda rights after arrest alone, and unanswered, is insufficient to infringe on defendant's right to remain silent.
State v. Scott, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82829, filed 1/5/2001). Questions asking why a defendant waited until trial to divulge their alibi constitute a Doyle violation and are improper. Prosecutors cannot elicit evidence at trial of a defendant's post-Miranda silence. See Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 79 L.Ed.2d 91 (1976); State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998); State v. Heath, 222 Kan. 50, 53, 563 P.2d 418 (1977); State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976).
State v. Pham, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82596, filed 9/1/2000). Asian gang banger pointed gun at someone's head. Was arrested a couple weeks later and a gun was found in car. Prosecutor couldn't show it was gun used in aggravated assault, and it denied the defendant a fair trial when she tried to introduce it in evidence. "This prosecutor appears to have forgotten that she holds a position unique in the bar. Although she is required to be a zealous advocate on behalf the government, she must not pursue conviction at all costs. Her role is to see that justice is done. "[T]he prosecutor should always bear in mind that he or she is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he or she should preserve." See State v. Lockhart, 24 Kan. App. 2d 488, 493, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (citing State v. Wilson, 188 Kan. 67, 73, 360 P.2d 1092 [1961]).
We are convinced that the prosecutor's use of the gun at Pham's trial represented prejudicial misconduct geared to achieve her desired ends with little attention to the fairness of the means. We therefore find that the district court abused its discretion in refusing to grant a new trial to Pham on this issue."
Prosecutor also committed misconduct during closing:
"In this case, we find the prosecutor's statements that defense counsel Loeffler did not "want the truth" and that he told the jury under oath that he did not "care about the truth" misstated the evidence and, in essence, called him a liar. This impression was furthered by her accompanying remark: "Boy, if you're going to be looking at the credibility of the witnesses, you might also start with some of these lawyers." See Pabst, 268 Kan. at 505-07 (prosecutor's assertion that defendant lied improper); Lockhart, 24 Kan. App. 2d at 491-93 (prosecutor's comments referring to defendant and defense counsel as liars "serious breaches of the standard of fair comment permitted to lawyers when making closing arguments"; "[t]rials cannot be allowed to degenerate into name-calling contests"); see also State v. Gray, 25 Kan. App. 2d 83, 84-88, 958 P.2d 37 (1998) (prosecutor's comments during cross-examination and closing argument manifesting ill will and calling attention to matters outside the evidence merit reversal).
An evaluation of the comments made by the prosecutor is complicated because of defense counsel's dual role as advocate and witness. However, we believe these comments reflect an ill will toward the defendant and opposing counsel that is destructive to the professionalism on which the bar prides itself. They also constituted gross and flagrant misconduct that denied the defendant a fair trial. In the words of the Lockhart panel: "Juries must be given an opportunity to exercise reason and sound judgment in deciding the facts of a case, free from passion and prejudice." 24 Kan. App. 2d at 492. Especially when the district judge fails to rein in bad behavior by the prosecutor, juries are encouraged to throw over rational analysis for emotion, and the defendant's right to due process of law is violated. We believe the prosecutor crossed the line here.
Our conclusion in this regard is reinforced by additional improper comments made by the prosecutor during closing argument. At one point, despite an absence of any evidence of police investigation results to support her, the prosecutor suggested to the jury that she had many additional witnesses who would tie Pham to the crime; she told the jury she simply chose not to call them to avoid wasting time. She also expressed her opinion that a witness other than Loeffler was "not credible." Although these comments passed without objection, we note them as further indicators of ill will and the triumph of zeal over responsibility throughout the trial. See Pabst, 268 Kan. at 510 (statements regarding witness credibility demonstrate prosecutor ignored obligation to avoid personal insinuations)."
Portudono v. Agard, ___ U.S. ___, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000) (reversing 117 F.3d 696). No reversible error when prosecutor challenged respondent's credibility during summation, calling the jury's attention to the fact that respondent had the opportunity to hear all other witnesses testify and to tailor his own testimony accordingly. Prosecutor's comments did not violate respondent's Fifth and Sixth Amendment rights. It is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he has heard the testimony of those who preceded him. Cf. Griffin v. California, 380 U.S. 609, which suggested that a defendant's silence is "evidence of guilt," id., at 615. The prosecutor's comments in this case concerned respondent's credibility as a witness. They were therefore in accord with the Court's longstanding rule that when a defendant takes the stand, his credibility may be assailed like that of any other witness--a rule that serves the trial's truth-seeking function, Perry v. Leeke, 488 U.S. 272, 282.
State v. Smith, ___ Kan. ___, ___ P.2d ___ (No. 78,902 filed 12/10/99). Prosecutor can comment on a defendant's failure to make statements to police, but cannot comment on defendant's refusal to testify. The Fifth Amendment to the United States Constitution forbids comment by the prosecution on the accused's silence or instructions from the court that such silence is evidence of guilt. State v. Davis, 255 Kan. 357, 361, 874 P.2d 1156 (1994). The prohibition is codified in Kansas in K.S.A. 60-439. See also State v. Ninci, 262 Kan. 21, 47-48, 936 P.2d 1364 (1997).
State v. Smith, ___ Kan.App.2d ___, 11 P.3d 520 (2000); State v. Lockhart, 24 Kan.App.2d 488, 947 P.2d 461 (1997); State v. Hutcherson, 25 Kan.App.2d 501, 968 P.2d 1109 (1998) and State v. Hill, (Kan.App. No. 78,788 unpublished decision filed 3/12/99). Prosecutor cannot call defendant, defense attorneys and/or defense witnesses “liars” during closing argument.
State v. Edwards, ___ Kan. ___, 955 P.2d 1276 (1998). Prosecutor’s eliciting of evidence on defendant’s post-Miranda silence violates Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, witnesses’ comment, in passing, that suspect invoked right to attorney, followed by an objection and offer to admonish, and which State does not further comment on, is harmless error where defendant then agreed to speak with police.
State v. Gray, ___ Kan. App. 2d ___, 958 P.2d 37 (1998). Remark during closing argument that defendant’s needle tracks were much more pronounced on day of arrest was reversible error despite judge’s admonishment.
United States v. Singleton, ___ F.3d __ (No. 97-3178 1/8/99)(en banc). Federal prosecutors can offer witnesses promises of leniency in exchange for witness's truthful testimony. Doing so does not violate a federal statute prohibiting "anyone" from offering anything of value in exchange for their testimony.
Kashbro Inc. v. Miami, Fla., ___ So.2d ___ (No. SC94058, filed 7/12/01). City may be liable for compensation for a taking when it shuts down property as a public nuisance if the nuisance activity could be alleviated with less infringement on lawful conduct. Here Miami shut down a motel for drug and prostitution activity, and an apartment building for cocain sales. The drugs and prostitution were so inextricably intertwined with the motel operation that no compensation was due. On the other hand, padlocking an apartment building for a year based on two sales of cocaine at the complex was not specifically tailored to abate the drug nuisance, so compensation is due.
State v. Tremble, ___ Kan. ___, ___ P.3d ___ (No. 91672, filed 4/22/2005). Where questions reserved are highly fact-specific and the opinion will not provide helpful precedent, the court will not entertain the appeal. In this case, defendant fired multiple gunshots into the pavement, injuring several people. The state charged him with eleven counts of aggravated battery, a level 8 felony. Based on the victims statements at preliminary hearing, the state would decide whether to file as level five aggravated battery. At the beginning of prelim, defendant waived and wanted to plea as charged. The state objected, but did not dismiss, and the judge accepted the plea. The state appealed. The Supreme Court declined jurisidiction.
Selective or Discriminatory Prosecution
State v. Gant, ___ Kan. ___, ___ P.3d ___ (No. 98,026, filed 01/30/09). In order to establish a defense, a defendant must show that others who are similarly situated are generally not prosecuted for conduct similar to the conduct for which the defendant is being prosecuted and that the defendant has been intentionally and purposefully singled out for prosecution on the basis of arbitrary or invidious criteria.
State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Res gestae is no longer an independent basis for admission of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules.
http://www.kscourts.org/kscases/supct/2006/20061027/91406.htm
State v. Dyer, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91447, filed 4/1/2005). There must be substantial competent evidence to support the trial court's factual finding of causation between the crime and the victim's loss, and the court can only order restitution for losses or damages caused by the crime for which the defendant was convicted unless the defendant has agreed to pay for losses not caused directly or indirectly by the defendant's crimes. If a defendant acquiesces to a different amount, they cannot complain about the amount ordered.
State v. Hunziker, ___ Kan. ___, ___ P.3d ___ (No. 86861, filed 10/25/2002). Defendants pled to criminal damage and theft related to defendant's backhoe, which was totally destroyed. The trial court awarded restitution for the fair market value of the backhoe, value of lost work, expenses to cover, interest and attorney fees. Hunziker basically claimed restitution should be limited to the fair market value of the backhoe. The Supreme Court disagreed, finding nothing in the statutes that limits restitution to solely for damaged property. While they reversed the inclusion of attorney fees and touch up paint, they affirmed the award.
State v. Hymer, ___ Kan. ___, 26 P.3d 63 (2001). In the absence of an agreement by the defendant, the district court is limited to imposing restitution only for the offense for which the defendant is sentenced. Order to pay restitution imposed in a prior case was vacated.
State v. Bausch, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 85131, filed 8/17/2001). In an embezzlement case, it was proper for the trial court to award restitution requiring the defendant to pay for an audit of company books. Restitution is meant to compensate the victim and serve the functions of deterrence and rehabilitation of the guilty. State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999).
State v. Hymer, ___ Kan. App. 2d ___, 11 P.3d ___ (No. 83254, filed 9/22/2000). An unpaid order of restitution made in an earlier case may be imposed as a condition of probation in a subsequent case. If restitution is strictly a condition of probation that would be discharged if a defendant violated probation and served a jail sentence, it would be treated as such in the statutes. However, the statutes treat restitution as a separate order, different from all other conditions of probation. Further, journal entries list restitution under the "costs ordered" section of the journal entry, not the probation section. Restitution is an order from the court which can be enforced by the beneficiary of the order or by the court itself. The order does not disappear if the defendant violates probation and is sent to prison. See generally, Wininger v. Purdue University, 666 N.E. 2d 455 (Ind. App. 1996) (A restitution order is not discharged by completion of probationary period.).
State v. Cooper, 267 Kan. 15, 977 P.2d 960 (1988), Cooper pled no contest to aggravated battery. At sentencing, the State requested restitution but did not provide a specific amount. The State offered to specify the amount within 30 days, and the trial court ordered Cooper to pay restitution and ordered the State to provide the documentation supporting restitution within 30 days. Six months later, the state requested restitution in the amount of $4,890.86. The judge ordered Cooper to pay $2,500 in restitution as an additional condition of probation. The Court of Appeals reversed, holding the district court had lost jurisdiction, stating that a court has no jurisdiction to modify a sentence more than 120 days after imposition of the original sentence. State v. Hooks, 256 Kan. 869, 870, 888 P.2d 853 (1995). The Supreme Court reversed, holding the Court of Appeals erred in applying Hooks, a pre-guideline case and holding that the sentence was not illegal and the trial court did not abuse its discretion in considering the state's tardy request for restitution.
State v. Schulze, ___ Kan. ___, ___ P.3d ___ (No. 82,134, filed 7/9/1999). District court has jurisdiction to modify or suspend restitution. Schulze pled guilty to aggravated battery. At the time of the plea, the amount of restitution was unknown. Restitution in an unknown amount was ordered, and Schulze was placed on 36 months' probation. Some 5 months later, restitution was determined to be $14,026.92. A year later Schulze filed a motion to modify restitution. The State opposed the motion. The district court released Schulze from the remainder of the restitution requirement with the caveat that "[s]hould the defendant's situation change and he comes into an unexpected revenue, or his income increases dramatically between now and the end of his regular probation, then I'll advise Ms. Minor and the Court will take another look at it." No abuse of discretion in doing so.
State v. Jones, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,571, filed 01/23/09). Denial of defendant's motion for self-representation at his preliminary hearing was harmless error when defendant, after a proper colloquy before trial, waive his right to self-representation.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090123/98571.htm
Indiana v. Edwards, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-208, filed 6/19/2008). Edwards was charged with attempted murder and other crimes for a shooting during his attempt to steal a pair of shoes. His mental condition became the subject of three competency proceedings and two self-representation requests, mostly before the same trial judge. Referring to the lengthy record of psychiatric reports, the trial court noted that Edwards suffered from schizophrenia and concluded that, although it appeared he was competent to stand trial, he was not competent to defend himself at trial. The court therefore denied Edwards' self-representation request. He was represented by appointed counsel at trial and convicted on two counts. Indiana's intermediate appellate court ordered a new trial, agreeing with Edwards that the trial court's refusal to permit him to represent himself deprived him of his constitutional right of self-representation under the Sixth Amendment and Faretta v. California, 422 U. S. 806. Although finding that the record provided substantial support for the trial court's ruling, the Indiana Supreme Court nonetheless affirmed the intermediate appellate court on the ground that Faretta and Godinez v. Moran, 509 U.S. 389 , required the State to allow Edwards to represent himself. The United States Supreme Court disagreed, holding the Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.
http://www.law.cornell.edu/supct/html/07-208.ZS.html
State v. Easterling, ___ Kan. ___, ___ P.3d ___ (No. 100,454, filed 08/07/09). Judge Leuenberger did not err in rejecting a proposed 118-month agreed upon sentence for two counts of indecent liberties and instead imposing a hard 25 sentence. Easterling pled to two indecent liberties involving his grandaughter. In a post-Miranda interview, he also admitted to sexually abusing his own daughter back in the '80s, which Heather Stults-Lindsay recorded in her affidavit. It was proper to consider this prior bad act at sentencing, and the sentence imposed was not cruel or unusual.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090807/100454.htm
State v, Schad, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,445 filed 04/24/09). Schad, who lives in the small town of Hudson, Kansas (pop. 133) pled to one count of aggravated indecent solicitation for bathing with, and inappropriate touching of his grandaughters. The judge ordered as a condition of probation that he place signs around his house and on his car stating he was a sex offender. The Court of Appeals held those conditions were not reasonably related to the rehabilitative goal of probation or to the protection of the victim and society. The signage conditions made Schad an object of condemnation and ridicule and only confirmed society's outrage against Schad. Calling them a "punitive measure not reasonably related to rehabilitation," they Court held the conditions imposed were not expressly or implicitly authorized by K.S.A. 21-4610(c) and were thus illegal.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090424/99445.htm
State v. Trostle (Hanson), ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,960, filed 02/06/09). A district court does not have jurisidiction to modify a sentence once imposed, dispite an asserted "reservation of jurisdiction to consider alternatives to incarceration." Defendant pled to felony DUI and received a one-year sentence. The court reserved jurisdiction to modify the sentence after nine months, and granted release on electronic monitoring. The Court of Appeals held it was an illegal modification of sentence.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090206/99960.htm
State v. Anderson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,602, filed 09/26/08). Defendant and his babies' momma went to a meeting with SRS, and became irate when informed the state had placed their children into emergency custody. Defendant threatened to bomb SRS, kill SRS employees and kill the foster parents. Police stopped defendant's vehicle after he left the meeting, and found drugs and paraphernalia in a camouflage jacket. Babies' momma said the jacket was hers, but then Defendant said it was his. Defendant was charged with criminal threat and possession. At trial he said he only claimed ownership of the jacket to keep babies' momma out of jail. During trial the judge denied the defense motion that his client not be shackled. The jury convicted him of both counts. The Court of Appeals reversed, finding an abuse of discretion by the trial judge simply deferred to the jailer who wanted Defendant in shackles.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080926/96602.htm
Oregon v. Ice, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-901, filed 01/14/09). Ice twice entered an 11-year-old girl's residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim's vagina; and first-degree sexual assault for touching her breasts. Ice was sentenced under a state statute providing, generally, for concurrent sentences, Ore. Rev. Stat. sec.137.123(1), but allowing the judge to impose consecutive sentences in these circumstances: (1) when "a defendant is simultaneously sentenced for ...offenses that do not arise from the same ... course of conduct," sec.137.123(2), and (2) when offenses arise from the same course of conduct, if the judge finds either "(a) [t]hat the ... offense ... was an indication of defendant's willingness to commit more than one criminal offense; or ... "(b) [t]he ... offense ... caused or created a risk of causing greater or qualitatively different ... harm to the victim," sec.137.123(5). The trial judge first found that the two burglaries constituted separate incidents and exercised his discretion to impose consecutive sentences for those crimes under sec.137.123(2). The court then found that each offense of touching the victim's vagina met sec.137.123(5)'s two criteria, giving the judge discretion to impose the sentences for those offenses consecutive to the two associated burglary sentences. The court elected to do so, but ordered that the sentences for touching the victim's breasts run concurrently with the other sentences. On appeal, Ice argued, inter alia, that the sentencing statute was unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 , and Blakely v. Washington, 542 U. S. 296 , holding that the Sixth Amendment's jury-trial guarantee requires that the jury, rather than the judge, determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular crime. The appellate court affirmed, but the Oregon Supreme Court reversed, holding that the Apprendi rule applied because the imposition of consecutive sentences increased Ice's quantum of punishment. The United States Supreme Court, in a 5-4 decision, reversed. In light of historical practice and the States' authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. The Court is cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U. S. 197. There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury's domain as a bulwark at trial between the State and the accused. Instead, the defendant--who historically may have faced consecutive sentences by default--has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice. Ice's argument that he is "entitled" to concurrent sentences absent the factfindings Oregon law requires is rejected. Because the scope of the federal constitutional jury right must be informed by the jury's historical common-law role, that right does not attach to every contemporary state-law "entitlement" to predicate findings. This Court should not diminish the States' sovereign authority over the administration of their criminal justice systems absent impelling reason to do so. Limiting judicial discretion to impose consecutive sentences serves the "salutary objectives" of promoting sentences proportionate to "the gravity of the offense," Blakely, 542 U. S., at 308, and of reducing disparities in sentence length. All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor the Court's Sixth Amendment traditions compel straitjacketing the States in that manner. Further, the potential intrusion of Apprendi's rule into other state initiatives on sentencing choices or accoutrements--for example, permitting trial judges to find facts about the offense's nature or the defendant's character in determining the length of supervised release, required attendance at drug rehabilitation programs or terms of community service, and the imposition of fines and restitution--would cut the rule loose from its moorings.
http://www.law.cornell.edu/supct/html/07-901.ZS.html
State v. McCarley, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95,818, filed 7/27/2007). Where the state stipulates that the PSI is correct, and the judge imposes a sentence based on the PSI, the state cannot thereafter file a motion to correct illegal sentence and file a direct appeal from its denial. It may, however, proceed on a question reserved. The court of appeals held the underlying sentence was not illegal because the state invited the error (one judge dissenting).
Cunningham v. California, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05-6551, filed 1/22/2007) Petitioner Cunningham was tried and convicted of continuous sexual abuse of a child under 14. Under California's determinate sentencing law (DSL), that offense is punishable by one of three precise terms of imprisonment: a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. The DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional 'circumstances in aggravation.' Court Rules adopted to implement the DSL define 'circumstances in aggravation' as facts that justify the upper term. Those facts, the Rules provide, must be established by a preponderance of the evidence. Based on a post-trial sentencing hearing, the judge found by a preponderance of the evidence six aggravating facts, including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct. Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years.
Held: The DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. In Apprendi v. New Jersey, this Court held that, under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. Blakely and Booker bear most closely on the question presented here. Following the reasoning in those cases, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by the judge, and need only be established by a preponderance of the evidence, the DSL violates the rule of Apprendi.
http://www.law.cornell.edu/supct/html/05-6551.ZS.html
United States v. Cage, ___ F.3d ___ (10th Cir. No. 05-2079, filed 6/8/2006). A sentence of six day's imprisonment plus supervised release for conspiracy to distribute a mixture and substance containing methamphetamine and using a telephone to facilitate a drug trafficking offense is reversed where the facts of the case did not justify an extreme divergence from the advisory guidelines range, and thus, the district court's sentencing decision was unreasonable.
http://www.kscourts.org/ca10/cases/2006/06/05-2079.htm
State v. Pennington, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100278, filed 03/26/10). Where a defendant requests a continuance or acquiesces in a continuance beyond a speedy trial deadline he waives his speedy trial rights unless he revokes the waiver and makes the state aware of it. In this case defendant never made the state aware of the revocation of the waiver. Arraignment occurred on February 23. Trial was scheduled for May 21. On May 4, defense counsel withdrew and Pennington requested a continuance to allow his new counsel to prepare. The court later set the trial more than 90 days after the original trial deadline, on September 17. Although the court erred in setting the trial beyond the time called for by K.S.A. 22-3402(3), here the state was never aware of Pennington's alleged revocation until he moved to dismiss the week before trial.
State v. Blizzard, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99914, filed 03/12/10). Where a district court dismisses a case, the state appeals and the defendant is released from his bond after the dismissal, the speedy trial clock begins running again when defendant was ordered to post an appearance bond.
State v. Montes-Mata, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,883, filed 05/29/2009). Defendant was arrested on drug charges. He pled. While awaiting sentencing, the Sheriff's Department receive an I-247 form from DHS (ICE) that repeatedly referred to itself as an "immigration hold." Defendant's lawyer was allowed to withdraw, and prior to sentencing his new lawyer filed a motion to dismiss for lack of speedy trial. The state argued that due to the ICE hold, defendant was not held "solely by reason" of the drug charges. The Court of Appeals disagreed. Relying on an Ohio case interpreting 8 C.F.R. § 287.7(a), the court construed the detainer as merely a request for the holding agency to notify ICE before release of the alien. Finding that 111 days elapsed chargeable to the state, the Court dismissed the charge pursuant to K.S.A. 22-3402.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090529/98883.htm
Vermont v. Brillion, 555 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-88, filed 03/09/09). In July 2001, respondent Brillon was arrested on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. During the time between his arrest and his trial, at least six different attorneys were appointed to represent him. Brillon "fired" his first attorney, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. His fourth lawyer served from June 2002 until November 2002, when the trial court released him from the case. His fifth lawyer, assigned two months later, withdrew in April 2003. Four months thereafter, his sixth lawyer was assigned, and she took the case to trial in June 2004.
The trial court denied Brillon's motion to dismiss for want of a speedy trial. The Vermont Supreme Court, however, reversed, holding that Brillon's conviction must be vacated, and the charges against him dismissed, because the State did not accord him the speedy trial required by the Sixth Amendment. Citing the balancing test this Court stated in Barker v. Wingo, 407 U. S. 514 , the Vermont Supreme Court concluded that all four factors described in Barker--"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant," id., at 530--weighed against the State. Weighing heavily in Brillon's favor, the Vermont court said, the three-year delay in bringing him to trial was "extreme." In assessing the reasons for that delay, the court separately considered the period of each counsel's representation. It acknowledged that the first year, when Brillon was represented by his first and third lawyers, should not count against the State.
But the court counted much of the remaining two years against the State. Delays in that period, the court determined, were caused, for the most part, by the failure or unwillingness of several of the assigned counsel, over an inordinate period of time, to move the case forward. As for the third and fourth Barker v. Wingo factors, the court found that Brillon repeatedly and adamantly demanded a trial and that his lengthy pretrial incarceration was prejudicial.
Held: The Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent.
Pp. 6-11.
(a) Primarily at issue here is the reason for the delay in Brillon's trial. In applying Barker, the Court has asked "whether the government or the criminal defendant is more to blame for th[e] delay." Doggett v. United States, 505 U. S. 647 . Delay "to hamper the defense" weighs heavily against the prosecution, Barker, 407 U. S., at 531, while delay caused by the defense weighs against the defendant, id., at 529. Because "the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation," delay caused by the defendant's counsel is charged against the defendant. Coleman v. Thompson,
501 U. S. 722 . The same principle applies whether counsel is privately retained or publicly assigned, for " '[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.' " Polk County v. Dodson, 454 U. S. 312 . Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor. Pp.
6-8.
(b) Although the balance arrived at in close cases ordinarily would not prompt this Court's review, the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court's correction. The court erred in attributing to the State delays caused by the failure of several assigned counsel to move Brillon's case forward and in failing adequately to take into account the role of Brillon's disruptive behavior in the overall balance.
Pp. 8-11.
(1) An assigned counsel's failure to move the case forward does not warrant attribution of delay to the State. Most of the delay the Vermont court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel, each of whom requested time extensions.
Their inability or unwillingness to move the case forward may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic.
Yet the same considerations would not attend a privately retained counsel's requests for time extensions. There is no justification for treating defendants' speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. Pp. 9-10.
(2) The Vermont Supreme Court further erred by treating the period of each counsel's representation discretely.
The court failed appropriately to take into account Brillon's role during the first year of delay. Brillon sought to dismiss his first attorney on the eve of trial. His strident, aggressive behavior with regard to his third attorney further impeded prompt trial and likely made it more difficult for the Defender General's office to find replacement counsel.
Absent Brillon's efforts to force the withdrawal of his first and third attorneys, no speedy-trial issue would have arisen. Pp. 10-11.
(c) The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic breakdown in the public defender system could be charged to the State. Cf. Polk County, 454 U.
S., at 324-325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon's case.
P. 11.
955 A. 2d 1108, reversed and remanded.
Ginsburg, J,. delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.
http://www.law.cornell.edu/supct/html/08-88.ZS.html
State v. Vaughn, ___ Kan. ___, ___ P.3d ___ (No. 98,840, filed 01/30/09). The record is insufficient to determine whether defendant acquiesced in delay that pushed his trial beyond the 180-day limit. Defendant was arraigned on 08/15/06 and set for trial on 10/16/06. On that date, defendant filed a motion to dismiss and motion to suppress. The parties agreed to continue the matter until 12/05/06. Several judges recused themselves, then Judge Lyle was assigned. Lyle said he may have a conflict with defense counsel and continued the matter to 02/07/07. Lyle suffered some health problems and on 02/02/07, defense counsel sent the state a letter saying the matter was continued to 03/29/07. Lyle was still ill, and the matter was rescheduled to 05/11/07. On that date, defense counsel made an oral motion to dismiss due to speedy trial concerns, which the district court granted. The Supreme Court reversed and remanded for a determination on whether the defendant acquiesced to one of the delays after 12/05/06. The Court rejected the contention that all this 207-day delay was chargeable to the defendant, finding that was an unreasonable delay to decide a motion and judicial procrastination is not the defendant's fault. The court also rejected the contention that a judges illness should be an exception to the statute, finding such a determination should come from the legislature. It charged the state with 59 days from 12/05/06 to February 2, 2007, and 43 days between 03/29/07 and 05/11/07 because defendant neither sought nor acquiesced in this delay. The record did not contain enough information to determine whether defendant acquiesced in the 55-day delay between 02/02/07 and 03/29/07.
State v. Bryant, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,192 filed 9/5/08). Where defendant requests a plea hearing, but the plea falls through, the time between the trial date and the plea hearing is chargeable to the defendant for speedy trial purposes.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080905/96192.htm
State v. Watkins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,804, filed 10/05/07, published 8/6/08). Lying to a cop about your identity while you have an unserved warrant, along with other reasonable steps to serve the warrant will result in denial of a speedy trial motion. The offenses occurred in February and March 2003, and Watkins was charged in April 2003. After issuance of the warrant, officers told detectives to look for Watkins near Douglass Kansas. They entered the warrant into NCIC on 2/23/04. Six days later Watkins was stopped in Wichita and used her sister's name and date of birth. In March 2004, Butler County officers requested Sedgwick County officers to look for Watkins in several places. They looked but could not locate her. Watkins was arrested in Sedgwick County in July 2004, and May 2005, but they apparently did not run her through NCIC. She was arrested on the warrant on 5/6/2005.
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2007/20071005/96804.htm
New York v. Hill, 528 U. S. 110 . An attorney, acting without indication of particular consent from his client, could waive his client's statutory right to a speedy trial because "[s]cheduling matters are plainly among those for which agreement by counsel generally controls.
United States v. Williams, ___ F.3d ___ (10th Cir. No. 06-5036, filed 12/20/2007). A conviction and sentence for drug and firearm related offenses is reversed where the indictment required dismissal due to a failure to comply with the requirements of the Speedy Trial Act.
http://ca10.washburnlaw.edu/cases/2007/12/06-5036.pdf
State v. Adams, 283 Kan. 365, 153 P.3d 512 (2007). Reaching a statutory speedy trial issue on its own motion, the Supreme Court reverses a conviction for possession of cocaine, conspiracy to possess cocaine and other drug crimes. Trial began on January 24, 2004, and resulted in a mistrial. It was next scheduled for March 5, 2004, and bumped by the court to May 25, 2004. On May 21, 2004, the prosecutor contacted the judge and surmised that the defendant would not appear because he had warrants in other cases. The judge changed the trial to a status conference. Defendant appeared with his counsel. The court suggested July 7, 2004, but the prosecutor had a conflict. The court suggested August 17, 2004, but defense counsel had a conflict. The court set trial for August 18, 2004. Immediately before trial, Adams requested dismissal for lack of a speedy trial. The district court denied the motion. The state argued that defendant waived his speedy trial by acquiescing to the continuance until August 18, 2004. The Supreme Court rejected the argument, noting it was the state that canceled the May 25, 2004, trial, and it was the state's burden to give the defendant a speedy trial.
Zedner v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05-5992, filed 6/5/2006). Defendant's cannot prospectively waive "for all time" their right to a speedy trial under 18 U.S.C. 3161 et seq. because waiver is not specifically listed as an exception to the act. The act also takes account of the public interest in speedy trials. The public interest cannot be served if defendants can simply opt out of the act. Additionally, judicial estoppel does not apply because defendant did not take any action inconsistent with his motion to dismiss for lack of a speedy trial, and harmless error review is not appropriate for the trial judge's failure to make findings on the record. Remanded for dismissal with or without prejudice at the option of the district court. Scalia, concurring, says resort to legislative history is not necessary. "'We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: the judicial inquiry is complete.'" Zedner v. United States, ___ U.S. at ___, Scalia, J, concurring (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)).
State v. Biarda, ___ Kan.App.2d ___, ___ P.2d ___ (No. 83,508, filed 5/19/2000). Time attributable to an agreed request for a continuance to obtain diversion should generally be attributed to the defendant for the purpose of computing speedy trial compliance.
State v. Dozal, ___ Kan.App.2d ___, ___ P.2d ___ (No. 87690, filed 3/2003). State filed charged on 3/24/99 for offenses occurring on 7/21/98 & 8/4/98. State dismissed on 9/29/99, then refiled on 7/20/00 & received an arrest warrant. Only attempt to arrest was a letter from sheriff's department telling defendant to turn himself in within 10 days. Warrant was served on 10/12/00. Court of Appeals held the 84-day delay between issuance and service of the warrant was unreasonable pursuant to K.S.A. 21-3106(10).
Vindictiveness
State v. Merrills, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95117, filed 1/122007). Imposition of consecutive sentences after remand was not presumptively vindictive in violation of the rules in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794,. 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) , and State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996). The sentence after remand was not more severe than the original concurrent sentences.
State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979). The state cannot avoid the time limitations of K.S.A. 22-3402(2) by dismissing an action then refiling the same charges absent a showing of necessity.
State v. McCray, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89726 filed 4/9/2004). In determining whether good cause has been shown to permit withdrawal of a plea under K.S.A. 2003 Supp. 22-3210(d), the district court must consider the following factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Bey, 270 Kan 544, 545, 17 P.3d 322 (2001). On appeal of a motion to withdraw plea, we review the district court's decision under an abuse of discretion standard. See K.S.A. 2003 Supp. 22-3210(d); State v. Morris, 254 Kan. 993, 1001, 869 P.2d 739 (1994). Discretion is abused only when no reasonable person would take the view adopted by the district court. The defendant bears the burden of establishing such an abuse of discretion. Bey, 270 Kan. at 545-46. http://www.kscourts.org/kscases/ctapp/2004/20040409/89726.htm
United States v. Benitez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 03-167, cert. granted 12/8/03). The Supreme Court agreed Monday to give judges guidance on when they must throw out guilty pleas because of mistakes. Justices next spring will hear the case of a California man who pleaded guilty to drug charges and thought he would receive a briefer sentence than the 10 years he got. Prosecutors supported a lighter prison term, but a sentencing report revealed he had previous criminal convictions that made him ineligible for leniency. The judge had not warned Carlos Dominguez Benitez that his plea agreement did not allow him to withdraw his admission of guilt if he didn't get the recommended sentence. The San Francisco-based 9th U.S. Circuit Court of Appeals overturned the conviction because of the mistake. The Bush administration argued that despite the error, he shouldn't necessarily get a second chance. Courts, in considering such complaints, should take into account whether the person likely would have pleaded guilty even if they were told the information, Solicitor General Theodore Olson argued. Benitez was charged in 1999 after being arrested in Anaheim, Calif., in an undercover operation. Olson argued that the case is important because more than 95 percent of convictions in federal courts last year involved guilty pleas. It is unclear how often people want to withdraw those pleas.
Revised July 15, 2010