Archive for December, 2008

US Supreme Court Preview – Kansas v. Ventris – Background

December 30, 2008

In January of 2004, after a night spent abusing marijuana and methamphetamine Donnie Ray Ventris and his girlfriend Rhonda Theel went to the house of Ernest Hicks to confront him over rumors that he was abusing his girlfriend’s children. What happened inside the house remains clouded, with conflicting accounts but a few facts are undisputed. Hicks was shot to death and both Theel and Ventris made off with his truck, cell phone and several hundred dollars in cash. Ventris and Theel were apprehended a few days later, and Theel entered into a plea agreement to testify that Ventris was the shooter. The State charged Ventris with Felony Murder, Aggravated Burglary, Aggravated Robbery and misdemeanor theft. In a classic he-said she-said situation, both Ventris and Theel testified that the other had produced the gun and shot Hicks.

While in police custody, detectives had recruited Johnny Doser, a probation violator, to share a cell with Ventris and listen to what he had to say. In the course of the time they were in the cell together Ventris told Doser that he had been involved in a robbery that ‘went sour’ and that he had shot and robbed Hicks. At trial, Ventris’ attorney objected to Doser’s testimony arguing that his deliberate placement in the cell to have conversations with Ventris amounted to an interrogation without the benefit of counsel, a 6th Amendment violation. The State conceded the constitutional violation, but successfully persuaded the Trial Court that the testimony be allowed to impeach (i.e. contradict) Ventris’ testimony that Theel was the guilty party.

The jury acquitted Ventris of the murder and theft charges but convicted him of the robbery and burglary ones. Ventris appealed, and after losing in the Court of Appeals won a 6-1 decision of the Kansas Supreme Court, which held that statements obtained in breach of the 6th Amendment Right to Counsel are not able to be introduced at trial for any purposes at all. In reaching this decision, in an opinion by Justice Rosen, the Court looked at the history of 6th Amendment Right to Counsel claims, along with the history of exclusionary rules.

The Court found that some exclusionary rules (such as Miranda) are ‘prophylactic’ ones created to protect a constitutional right but not embodying a right in themselves. In these cases evidence may be admitted which was collected in breach of them to impeach the contradictory testimony of the accused, per existing U.S. Supreme Court precedent. It found in other cases where exclusionary rules are part of the constitutional right itself, that the exclusion was total. Noting that the United States Supreme Court had not ruled on this issue, it found that while most courts that had addressed it had ruled in the same way as the Trial Court, the Supreme Court of Maine had decided the issue the other way. Having discerned the two approaches it opted for the latter and blocked the admission of this type of evidence. The opinion itself dwells a great deal on the clandestine nature of the use of jailhouse informants. It notes that the 6th Amendment requires a defendant to make a knowing and voluntary waiver of their right to counsel once prosecution has commenced and holds that this cannot happen with an undercover informant.

Chief Justice McFarland dissented. In her view not only was the evidence admissible, but the State was wrong to have accepted that the evidence was obtained in violation of any constitutional right. She felt that an argument could me made to allow it in the main case. Her argument was that the U.S. Supreme Court’s case law on the subject was driven by the issue of whether the statements were made voluntarily or not (in this case they clearly were), and that they would only be barred if involuntarily made.

Advertisements

Down time

December 24, 2008

The Kansas Supreme Court is unlikely to issue any more opinions in 2008. Opinions are normally issued on Fridays, but the Court is closed this Friday. Posting here will therefore be sporadic until the normal pace is resumed. However, it will be worth checking back, or subscribing to our RSS Feed because while the Court will be quiet, we have a few things to get to here.

First of all, at any time in the next three weeks Governor Kathleen Sebelius will be naming one of three finalists to the vacancy on the Court created by the impending retirement of Chief Justice McFarland.  For our coverage of this topic, click on the Supreme Court Applicants category on the blog menu.

Secondly, on January 21st the United States Supreme Court will hear an appeal by the State of Kansas against a ruling of the Kansas Supreme Court in the case of Kansas v. Ventris (formerly State v. Ventris), concerning limits on the use of a defendant’s uncounseled testimony at trial to contradict their statements in the witness box. We’ll have coverage of that case throughout 2009, starting with an overview of the arguments and what is at stake. To follow that case, click on the KSvVentris tag, below.

Blog Round Up

December 23, 2008

Other blogs covering the Kansas Supreme Court, or related topics lately:

  • Kaw and Border criticizes the selection process for Kansas Supreme Court Justices.
  • Kansas Defenders covers the decision in State v. Schow.
  • The Kansas Liberty analyzes Planned Parenthood v. Kline and criticizes Justice Beier’s opinion.
  • In Re LM covers a Court of Appeals decision restricting who can be prosecuted under the State’s Romeo and Juliet law, which seems destined to head to the Supreme Court.

If you know of any other Kansas-related law blogs, please post links to them in the comments. We would be especially interested in those which have commented on any of the recent decisions of the Court.

Decision: State v. Conley

December 21, 2008

December 19th. The Kansas Supreme Court has issued its decision in State v. Conley (No. 99,279), in a unanimous opinion written by the Chief Justice. The Court rejected Anthony Conley’s appeal of a summary denial of a motion to correct an illegal sentence on the grounds that since he had already had one such appeal rejected it was procedurally barred by res judicata.

Conley, in a pro-se brief which the Chief Justice implies was a shoddy piece of work, along with his counsel on a separate brief, made the assertion that the original ruling of the Court in Conley’s previous appeal had been called into question by the way the United States Supreme Court had developed its Apprendi line of cases. Specifically he sought to argue that because the mandatory minimum component of his life sentence had been raised to 40 years based on facts not presented to the jury, there was an Apprendi problem. The Court reviews the Apprendi progeny to show that based on the law today this is not the case, since it only comes into play when the maximum term a defendant will serve is increased beyond the term for the crime they were convicted of. In an X to life situation, since the jury has found the defendant eligible to serve life, they are not needed to make findings beyond a reasonable doubt to determine the X component.

In any case, the Court also makes it clear that res judicata does apply to motions to correct illegal sentences, rejecting Conley’s parsing of the statute. In this respect these motions are just like any other and there is only one bite of the cherry. Having (unsuccessfully) litigated an Apprendi claim, Conley does not get another.

Conley also argued that it was inappropriate for the District Court to have entered a summary judgement on his motion. The Court is even more dismissive of his argument here, describing it as an attempt to change the law and so disorganized as to be the equivalent of not stating a claim. Unsurprisingly, Conley loses here and the Court holds that District Courts do have a duty to check such motions and can dismiss those that are lacking in a sustantial issue of fact or law.

Decision: State v. Howard

December 21, 2008

December 19th. The Kansas Supreme Court has issued its decision in State v. Howard (No. 98,976). In a unanimous opinion, written by Justice Nuss, the Court affirmed a District Court’s summary dismissal of Carl Howard’s motion to correct an illegal sentence on the grounds of sentence ambiguity.

Howard was convicted of aggravated kidnapping, two counts of rape, and six counts of aggravated criminal sodomy in 1987. At sentencing the Judge misstated the sentence he intended to impose due to the mixture of consecutive and concurrent sentences being handed down. He clarified it with both counsel at the same time he pronounced it. The next day, he reconvened the court to restate the sentence to make sure all understood the previous day’s ruling, and again misstated the sentence. Again, by the end of proceedings he had clarified it and his clarification matched that of the day before and what was entered in the journal. Howard’s sentence was 35 years to life, but based on excerpts from the judge’s misstatements Howard argued the actual sentence imposed was 15 years to life. Howard’s motion to correct the sentence was dismissed by the District Court.

The Court reviewed the summary dismissal on a de novo standard. It adopted this approach because a similar statute to the illegal sentencing one uses a de novo standard when reviewing summary judgements. This in turn is because no new facts have entered the record at the time of a Summary Judgement so the appellate court and District Court are in the same position.

Having reviewed the original sentencing journal and transcripts and reiterating the rule that the sentence announced is the sentence, irrespective of what is in the journal, the Court agreed with the District Court that Howard’s motion was without merit. If a Judge trips over his words and says the wrong thing, even if he does it twice, it does not make the ensuing sentence ambiguous since in this case the Trial Judge ensured that having misspoken everyone understood the sentence to be 35 to life, by the end of both day’s hearings.

Commentary: Hard case, bad dissent

December 20, 2008

This is a follow up to an item about the decison in In Re Adoption of A.A.T., which appeared a few days ago. Before reading this commentary please read the case overview at that link.  What follows is personal opinion.

The opinions issued in this case can be summarized roughly as follows:

* The majority holds that M.P. missed his (albeit fleeting) opportunity to assert his parental rights as an unwed father. He therefore had no constitutional right to the notice which he was not given. The adoption therefore stands, and A.A.T (who is four years old). remains with the family he has spent his whole life with.

* Justice Nuss clearly thinks the father was wronged and that the adoption should be voided so that M.P. may regain his exclusive rights as a father to A.A.T. He makes no comment on the practical implications of this to A.A.T..

* Justice Beier implies horror at the practical application of her position, but would void the adoption and let the chips fall where they may because she sees the burden on M.P. set by the majority to be too great for him to have had a chance to meet it.

* Justice Rosen would void the adoption but have it replayed under a standard that includes the concept of the ‘best interests of the child’, something which would more or less guarantee that A.A.T. remain with his adoptive parents after several more years of draining legal fights.

It is my opinion that the outcome in this case was the correct one. It is somewhat disturbing that 3 out of 4 Justices on the Kansas Supreme Court would be willing to void the adoption, in the knowledge that to do so would present the likely outcome of a young child being ripped from his home and placed with a stranger who had never so much as seen him solely on the basis of biology. Justice Rosen suggests a way out, but there is no certainty that lower courts would have followed it had one more vote gone the dissenters way. What is more, while Rosen’s position (that the courts in Kansas have already established that the ‘best interests of the child’ is a valid theme in adoption cases) is a strong one, the language he couches it in is practically a license to judicial invention.

Justice Nuss’ dissent is particularly troubling. He praises M.P. for respecting N.T.’s abortion rights by eliminating himself from a role in the decision, then turns around and claims that because N.T. chose not to have an abortion but lied to M.P. about it that he can claim his rights. Does it not occur to Nuss that passively going along with the supposed abortion proves more than any legal analysis that M.P. abandoned his claim on the child?

The dissenters would have you believe that they are obligated to come to the conclusion they do by the state of the law and the current precedents from the US Supreme Court, yet we should remember that the court was not being asked whether M.P. would have prevailed had he attended the original hearing, but whether his failure to attend (for whatever reason) rose to the level of a constitutional violation, great enough to warrant reopening a case that has already been finalized where no such precedent exists in such an extreme situation.

When the US Supreme Court found a due process parental right of unwed fathers attached to the due process rights of parenting, it did so in a case far removed from this one. In that case an unmarried couple raised their children together, until the mother died and the State of Minnesota took the children and put them up for adoption. The father in that case effectively filled the now lost (in law) concept of common law marriage. To extrapolate from that case to the position that the dissenters take is an abomination.

December 12th: Remaining opinions

December 19, 2008

In addition to the opinions covered here, the Court on December 12th issued one disciplinary decision, In re Lee (No. 10,0821) and one unpublished opinion: Strong v. Bruce (No. 97,204) written by Justice Nuss (Reversed and remanded with directions).

Unpublished opinions are supposed to be those where the case turns on the straightforward application of existing law. Though widespread, the practice is not without controversy – it has been criticized elsewhere for allowing courts to hide ‘stinkers’ as well as being unnecessary in the age of the internet where the size of printed materials is no longer a constraint. This case is not available online. If anyone is aware of any controversy surrounding it, please contact this blog and we will investigate.

Decision: Kelly v. VinZant

December 19, 2008

December 12th. The Kansas Supreme Court has issued its decision in Kelly v. VinZant (No. 94, 648), a torts case. In a unanimous opinion, authored by Justice Luckert, the Court partly affirmed and partly reversed the Court of Appeals and District Court’s decisions terminating a case brought by William Kelly against Whitney VinZant, a surgeon. While blocking Kelly’s suit for fraud based by malpractice (since a prior jury had rejected his malpractice claim) and also blocking his attempt to sue for battery (on statute of limitations grounds), the Court left the door open to Kelly to pursue a claim against VinZant under the Kansas Consumer Protection Act (KCPA). In doing so it held that a 2007 amendment to the KCPA, passed by the legislature in response to a previous decision of the Court was not retroactive. All suits which predated the enactment of that amendment are therefore preserved.

VinZant had performed a series of three operations on Kelly. The first two were not wholly successful and culminated in Kelly losing one of his testicles. Kelly brought three suits (one for each of the operations) which alleged medical malpractice, fraud (VinZant had claimed he did ‘not do bad surgeries’), a violation of the KCPA (related to the fraud claim) and battery by way of fraud (that an operation without consent is battery and the consent was obtained by fraud). The District Court combined these suits and severed the claims. After a jury acquitted VinZant of malpractice the Judge dismissed the other suits since there was no malpractice, there was no fraud. The KCPA claim had been dismissed on the grounds that it did not apply to a medical setting (as opposed to advertisments for professional services).

On Appeal the Court of Appeals affirmed the District Court. It held that the battery claim was initiated outside of the statute of limitations, and that the fraud could not stem from the malpractice since there was none. It noted that after the District Court had ruled, the Supreme Court had decided Williamson v. Amrani which held that a medical practitioner could be sued under the KCPA. However, the Court of Appeals held that in this case the District Court was right for the wrong reason in that the KCPA claim was also barred by the jury’s finding of no malpractice.

The Supreme Court agrees with the Court of Appeals on the fraud. Kelly had sought to argue that the fraud was disconnected to the malpractice since it related to his decision making to allow the operations. Nevertheless the Supreme Court held that since the alleged fraud was connected to the surgeries that it is not a separate complaint but falls under medical malpractice. Therefore, the jury’s verdict foreclosed the fraud claim.

The Supreme Court also agrees with the lower courts on the battery claim. Kelly had argued that since he did not consider the consent to the operations to be fraudulently obtained until much later (at the conclusion of the three treatments) the statute of limitations on battery should run from there, just as the one for fraud runs from the moment of discovery of the fraud. The Court disagreed, holding that the statute of limitations for battery is one year from the physical incident and contains no exceptions.

Where the Supreme Court disagreed with the lower courts was over the KCPA. In doing so it brings to a close an issue which has involved all three branches of the State Government. In Williamson v. Amrani the Court had held that the KCPA applies medical situations where a physician’s statements to the patient constitute deceptive practices and not purely to other contexts such as advertising. In this case the ‘I not do bad surgeries’ statement might qualify. In 2007 the Legislature attempted to modify the KCPA to overturn Williamson (SB 55). The Governor vetoed SB 55, whereupon the Legislature again modified the KCPA via HB 2451, which became law. The Court examined the text of the amendment and held that it was not retroactive since there was no indication that it was intended that way, therefore while future suits are blocked, those already in progress may proceed. A footnote here is that the original text of the vetoed bill says ‘nothing in this act shall be construed to…’ while the amendment which made it into law says ‘the KCPA does not allow…’. Whether the Court would have considered SB 55 retroactive is a question which there will never be an answer to.

As a result of its ruling, Kelly’s various claims are terminated except for the KCPA case, which is remanded to the District Court for further proceedings.

Decision: State v. [Eric] Jones

December 19, 2008

December 12th. The Kansas Supreme Court has issued its decision in State v. Jones (No. 97,279). In a unanimous opinion, authored by Justice Johnson, the Court rejected Eric Jones’ appeal of his conviction for the first-degree murder of Brannon Wright, in Wyandotte County. In reaching its decision the Court developed its 6th Amendment Confrontation Clause jurisprudence in two ways. Firstly, in the light of the United States Supreme Court’s decision earlier this year in Giles v. California, the Court overturned its own precedent in State v. Meeks. Secondly and more notably, it found a ‘dying declaration’ exception in the Confrontation Clause.

The background to this case was the killing of Brannon Wright in Kansas City, Kansas over the alleged theft of $300-400 from Jones’ girlfriend at a party in Kansas City, Missouri the night before. Jones and several others, including one Terrae Johnson, approached Wright and witnesses reported that Jones threatened Wright with a handgun before they fled for cover. Almost immediately afterwards they reported hearing multiple gunshots. Paramedics attending to Wright asked him about what had happened and he gave them the address of Jones’ girlfriend and Jones’ nickname. Wright eventually succumbed to his wounds before giving a proper statement to police. Jones and the others had fled the scene. Johnson was later apprehended with the gun while evidence tied Jones to a bloody shirt and shoe found discarded in a plastic bag. At trial Jones maintained that Johnson was the shooter, but the District Judge allowed the admission of the paramedic’s account of Wright’s statements which, along with the witnesses who had heard the shooting, identified Jones.

Jones’ appeal argues that the District Court erred in allowing this evidence to be included. The Kansas Supreme Court’s prior implementation of the ‘forfeit by wrongdoing’ exception to the 6th Amendment Confrontation Clause (State v. Meeks) had allowed for this kind of testimony to be admitted where the defendant’s actions had prevented the appearance of the witness (based on a preponderance of the evidence standard). Thus, since it was likely that Jones had shot Wright, the testimony could be included. However, Jones argued that Meeks was incorrect and that an element of intent was required also, i.e. to show that Jones shot Wright with the intent that he be unable to testify. Jones’ argument proved to be prescient – the US Supreme Court came to that same conclusion earlier this year in Giles v. California – and the Kansas Supreme Court here duly overrules and clarifies Meeks as a result.

However, the Court refused to remand Jones’ case for a ruling on whether he had intended to prevent Wright from testifying (while shooting him five times), because it identified a different exception in the Confrontation Clause. At common law hearsay evidence was blocked except under two exceptions. One of these was the aforementioned ‘forfeit by wrongdoing’ exception. The other was the ‘dying declaration’ exception, which was where a victim’s reported testimony was given voluntarily when they were conscious of their impending death. Such statements were admitted at common law. The US Supreme Court opinions incorporating the first exception have noted the ‘dying declaration’ exception’s existence in footnotes (without ruling on the merits of its incorporation). The Kansas Supreme Court takes that step in this case and incorporates the ‘dying declaration’ exception into the 6th Amendment right to confront ones accusers.

In disposing of Jones’ appeal the court also rejected two other arguments: prosecutorial misconduct by way of a prejudicial closing statement and error by failing to instruct on lesser included offenses. The former claim is rejected because the prosecutors’ comments taken in context as part of the totality of his argument did not rise to the level required to trigger this type of misconduct. The latter is rejected because the offenses Jones was arguing for are offenses based on either loss of self control or killing by recklessness, which no rational jury could have convicted on, given that Jones maintained at trial that Johnson had shot Wright.

Jones’ 25 to life sentence is therefore upheld.

Decision: State v. Henson

December 18, 2008

December 12th. The Kansas Supreme Court has issued its decision in State v. Henson (No. 98,573). In an opinion by Justice Luckert, the Court unanimously affirmed the first-degree murder conviction of Toriana Henson for shooting Randy Davis in the head at a used car lot in Wyandotte County.

On the night of May 20th, 2006. Davis and some others had been out drinking. They returned to the car lot owned by one of the men where they were joined by Henson who was known to them. More beer was purchased and the men continued talking and joking around. Henson said something to mock Davis and Davis hit him in the head, knocking him to the ground unconscious. He was knocked out for about 10 minutes. When he recovered, one of the other men helped Henson away, intending to go to the hospital. Instead, Henson went home, cleaned himself up, spoke to his wife and retrieved a gun. Henson and Hall then returned to the lot, where Henson walked past some others, one of whom tried to persuade him to stop, pointed the gun at Davis’ head, said “What’s up now, Randy?” and shot him. Subsequently Hall and Henson fled to Henson’s mistress’ flat where Henson (after a brief trip home) grabbed a case and made a fleeting attempt to flee the State before surrendering to police the next day.

At trial, Henson tried to introduce evidence of Davis’ violent character. The District Court refused this on the grounds that the two fights Henson wanted referred to had no connection to the murder and were therefore of no probative value to the case, since Henson was not involved in them in any way. Henson also sought to have the jury instructed on the lesser included offenses of voluntary manslaughter (based on heat of passion) and/or second-degree reckless murder or involuntary manslaughter (on the theory that Davis putting his hand up to move the gun caused it to ‘go off’). The Court also rejected these mutually contradictory arguments. Henson appeals these three rulings and asks that the Supreme Court also rule that cumulatively they denied him a fair trial.

The Supreme Court rejects all of Henson’s arguments. On the matter of the fights it draws the same conclusion as the District Court, that the fights being on a different day and involving different people have no bearing on why Henson shot Davis (intent being an element of first degree murder).  On the other two arguments, the Court starts from the rule that District Courts have an obligation to instruct on lesser included offenses unless there is no way the jury could reasonably convict on them.

For the voluntary manslaughter (heat of passion) argument the Court surveys the existing case law and demonstrates that because Henson had a ‘cooling off’ period before he shot Davis (in which he interacted normally with his wife, cleaned himself etc) he cannot avail himself of this way out. Henson had argued that the length of time between being knocked out and shooting Davis was shorter than the prior cases, but the Court noted that the length of time is not important, it is the state of mind that is, and Henson clearly knowingly and intentionally shot Davis to death.

For the reckless homicide argument, where Henson suggested that pointing the gun at Davis was reckless and therefore Davis’ death was a result of recklessness, the Court bends over backwards not to descend into mockery. It notes that a single element of a crime cannot be plucked out of context to provide a reason for a lesser conviction, and that all the witnesses reported that Henson pointed a gun at Davis and shot him with no evidence whatsoever that it was an accident. Therefore no reasonable jury could convict him of reckless homicide.

Given this, the Court also rejected Henson’s argument of cumulative error since there was no error. The closing sentence of the opinion is that “Henson received a fundamentally fair trial.”