Appeal, Judge Must Advise Defendant of Right To and Time Limit
Cities - Charter v. Regular Ordinance
Credibility of Witnesses, Comment On
Jurisdiction - Municipal Courts
Misjoinder
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State v. Brown, 150 P.3d 335, 2007 WL 219964 (unpublished, Case No. 94,832).
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
Cities - Charter v. Regular Ordinance
Farha v. City of Wichita, ___ Kan. ___, ___ P.3d ___ (No. 95445, filed 7/13/ 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. Citys 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.)
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, 28 Kan. App. 2d 744, 24 P.3d 739, affirmed in part, reversed in part ___ Kan. ___, ___ P.2d ___ (No 85,499, filed 12/7/2001). 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, ___ Kan.App.2d ___, ___ P.3d ___ (No. 92248, filed 10/14/2005). 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.
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).
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.
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.
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.
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.
State v. Larson, ___ Kan. ___, 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, ___ Kan. ___, 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.
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, ___ Kan. ___, 133 P.3d 1253 (No. 92853, filed 4/28/2006). 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.
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. 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.
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.
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. 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. 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. 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
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
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. 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. 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-Miran