Archive for March, 2009

Decision: State v. Riojas

March 30, 2009

March 27th. The Kansas Supreme Court has issued its opinion in State v. Riojas (No. 98,196), an appeal against a felony murder conviction by Mark Riojas of Wichita. In a unanimous opinion, written by Justice Rosen, the court rejected all of Riojas’ complaints and affirmed his conviction and sentence.

In March 2006 Riojas stabbed and robbed Kenny Brown, who later died of his injuries, during a drug deal gone bad. Riojas had claimed to have taken Brown to a different person for the drugs who had been the one who stabbed him, but several people at the scene identified him as Brown’s assailant. Riojas had also attempted to use Brown’s ATM card. He claimed he had done this at Brown’s suggestion, after Brown had been stabbed in order to pay off the drug bill. A jury convicted him of felony murder and aggravated robbery.

On appeal Riojas made two arguments against his conviction. His first claim was that the trial court had wrongly admitted testimony of a witness who stated that Riojas had described slitting someone open with a knife (while playing with a knife which subsequently disappeared – the witness blaming Riojas for the theft). Riojas argued that this was evidence of prior bad acts which is barred from being admitted by statute, except in narrow circumstances lest it prejudice the jury. Before trial, Riojas’ counsel had sought to suppress this evidence but lost his motion to do so. At trial, his counsel did not object to the evidence once it was admitted. The Supreme Court therefore dismissed this complaint as procedurally barred – a matter can only be raised on appeal, if it was objected to in the actual trial. Motions before trial do not count to make an issue available for appeal.

Riojas’ second complaint was that the jury was prejudiced by the admission of post-mortem pictures of Brown. The court also rejected this argument – noting that in murder cases pictures proving cause of death are generally admissible and that these were not even particularly gruesome.

Riojas also challenged his sentence, on the grounds that it was in part based on his prior criminal history, which had not been submitted to the jury for consideration. These Apprendi complaints conclude most of the Court’s current crop of criminal cases, always with the same result: the Kansas Sentencing Guidelines are valid and constitutional, even after Apprendi.

Finally, Riojas challenged the imposition of a $100 fee to the Indigent Defence Services board. In State v. Robinson (2006) the Kansas Supreme Court had made a ruling requiring District courts to make certain findings when ordering payments to the IDS board at sentencing. In this case however, the $100 was for a fee which Riojas should have paid before trial but had not done so. As such, it was not covered by the ruling in Robinson.

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Decision: State v. Cofield

March 29, 2009

March 27th. The Kansas Supreme Court has issued its opinion in State v. Cofield (No. 98,133) an out of time appeal, allowed due to ineffective assistance of counsel in the initial trial, against Carl Cofield’s conviction for two drive-by shooting murders, and an act of arson, in 2004. In a unanimous decision, written by Justice Rosen, the court rejects all of Cofield’s complaints and affirms his conviction and sentence of two consecutive 25 to life terms.

In July of 2004, Cofield and some associates left a Kansas City, Kansas drug house and went driving in a pair of cars. Along the way they encountered a pair of young men walking. The occupants of both cars, including Cofield, stopped and opened fire with a variety of weapons killing both men. Subsequently, one of the cars was burned. In his confession to police Cofield stated that he had thought the two victims were adversaries of some kind, and had he known the true identity of one of them (an apparent acquaintance) he would not have shot them.

Cofield was convicted of the murders and a charge of arson. Prior to sentencing his defense attorney filed a notice of appeal. In Kansas notices of appeal cannot be filed before sentencing. After sentencing, but outside of the allowed time period his defense attorney filed an amended notice of appeal, which was ultimately dismissed as procedurally barred. Cofield was allowed to seek a hearing from the District Court to determine that his counsel had been ineffective in failing to properly file his appeal. He won a motion to this effect in District Court, creating this case. It was Cofield’s final success in a courtroom.

In this decision the Kansas Supreme Court rejects all of Cofields arguments for a new trial. His main complaint was that his confession (which contradicted what he said at trial) should not have been admitted as evidence. He maintains that he was under the influence of drugs at the time he confessed and that he was deprived of sleep by the police. At trial he told a different story, claiming he was bribed to confess to the crimes by one of his co-killers who was dead by the time of the trial. The court found nothing to back up his claim and rejected it, finding that the District Court made no error in allowing the admission of his statement.

Cofield also made a number of claims about the jury instructions at his trial. He argued that the choices of jury instructions created the false impression among the jury that they could convict him of first-degree murder even if the state had not proved intent. The court noted that since his trial it had held that the offending jury instructions should not be used together, but that in a case as clear cut as this one the jury was not relying upon this confusion to convict. Juror instructions can only be used to reverse a trial outcome where there was a real possibility the jury would have returned a different verdict if instructed differently. Similarly Cofield argued that some of the jury instructions unfairly encouraged the jury to come to a verdict since they spoke of cases eventually coming to an end and encouraged the jury to try to come to a consensus. The court held here that these instructions did not constitute anything more than a harmless error – there is concern over their being issued while a jury is deadlocked as supplemental instructions, but not at the outset of deliberations, and not in such a clear case as this one.

Cofield’s final throw of the dice was a claim of cumulative error – that the various alleged errors were enough combined to warrant a retrial. Since the court found no actual errors, there was no cumulative error either.

Decision: State v. King

March 28, 2009

March 27th. The Kansas Supreme Court has issued its decision in State v. King (No. 95,088), an appeal from a rape conviction which tested the bounds of whether certain evidentiary questions could be appealed without a contemporaneous objection by using the vehicle of alleged prosecutorial misconduct. In a unanimous opinion, written by then Justice Davis, the court ruled that appellate review of a prosecutor’s questioning of a witness requires an objection at the time of the trial. Previous cases which had allowed the separate prosecutorial misconduct standard to be used where no objection had been made were overturned by this decision. Note: Robert E. Davis is now the Chief Justice of the Kansas Supreme Court, but this case was argued in March 2008, under former Chief Justice Kay McFarland.

Prosecutors may not use a defendant’s post-arrest silence to impeach their credibility under cross examination. This is under the United States Supreme Court decision in Doyle v. Ohio (1976), or the Kansas cases implementing that decision. In William King’s trial for the rape and criminal sodomy of a woman between Pittsburg and the Missouri border, the prosecutor commented on the fact that in King’s written statement to police he did not mention that he had had sex with her, sex which at trial he was maintaining was consensual. This potentially was impermissable since King was under no compulsion to provide the police with anything given his Fifth Amendment right to silence. His defense counsel did not object to this line of questioning at the time.

Appellate rules in Kansas, as specified by statute, require that an objection must be raised at the original trial to any issue which the defendant wishes to raise on appeal. This is a procedural bar which the Kansas Supreme Court (and indeed the United States Supreme Court) has repeatedly held is practically absolute, even in cases where the defendant alleges that his constitutional rights have been violated. The reason is that without this rule litigation would be endless and by requiring a contemporaneous objection, trial errors can be addressed at trial, avoiding the need for appeals and retrials.

At the same time, in cases of prosecutorial misconduct the Kansas Supreme Court has held that the objection need not be raised at the time of trial for the appellate court to consider the matter. This is because prosecutorial misconduct can be seen as compromising the fundamental due process right to a fair trial.

The tension in this case was whether the conduct challenged under Doyle could be challenged as prosecutorial misconduct, or whether it was procedurally barred. After a review of the caselaw, and the statute requiring contemporaneous objection as well as U.S. Supreme Court decisions touching on these kinds of procedural bars, the court concluded that allowing appeals concerning prosecutors questioning of witnesses to get around the contemporaneous objection requirement by alleging prosecutorial misconduct was blurring the law and defeating the intent of the legislature. As a result the court disapproved its caselaw which allowed this and restated the law to the effect that prosecutorial misconduct can still be alleged for voir dire, opening statements and closing statements without a contemporaneous objection, but that in appeals concerning prosecutors questioning of witnesses, the objection is required to have been made at the original trial.

The court also ruled against King on two other issues. Firstly it rejected his argument that the prosecutor had improperly implied he was a liar during closing argument (which would not be allowed). It noted that the prosecutor was responding to the defense counsel who had implied that King’s victim was lying, by asking the jury which of King or the victim had a motive to lie. Secondly, it rejected his appeal against a restitution plan which the District Court had ordered without taking into account King’s ability to pay it. The Court held that it is up to the defendant to raise questions of ability to pay during restitution hearings, noting that it took this part of this case in order to make clear that the District Court only has the obligation to take this into account when considering restitution to the Board of Indigents’ Defense Services.

Decision: Higgins v. Abilene Machine Inc

March 28, 2009

March 27th. The Kansas Supreme Court has issued its opinion in Higgins v. Abilene Machine Inc (No. 97,649) a workers compensation case that dealt with the question of the recoverability of expert witness fees. In a 6-1 decision, written by Justice Beier, the court ruled that expert witness fees were not recoverable as costs in post-award medical benefit claims. Justice Johnson dissented. He would award the costs, citing public policy reasons behind the act which authorized the payment of attorney fees and certain other costs.

The background to the case was straightforward. John Higgins injured his back while working for Abile Machine Inc, and received workmans comp for the injury and two post-award medical treatments (i.e. further medical attention necessitated by the original incident, where the treatment happened after the settlement of the original case). In the second of these, he sought reimbursement of approximately $1000 in expert witness fees for the testimony of two doctors. He cited the law which provides for this which lists ‘witness fees’ as one of the allowable costs that can be awarded to the claimant, and which also states that its list of allowed costs is non-exclusive.

The Administrative Law Judge (ALJ) denied the application, ruling that he could not award expert witness fees as costs. The Workers Compensation Board affirmed the ALJ (with one dissent) and the Court of Appeals affirmed the Board with one dissent. Now the Kansas Supreme Court affirms the Court of Appeals, with one dissent.

The ruling of the Court turns on the legislative intent in writing the clause at issue. Justice Beier notes that the plain wording of the statute (“witness fees”) seems to imply that expert witness fees would be covered, but goes on to state that when read in the light of the act as a whole it does not, since the legislature separately defined ‘witness fees’ as having the same meaning as under civil proceedings, where expert witness fees are excluded. The Court also rejected the notion that expert witness fees should be incorporated at the discretion of the ALJ (thanks to the list of costs being non-exclusive) because expert witness fees are sizeable and more akin to attorneys fees which while award-able as costs are treated separately in the act. The Court rules that had the legislature intended to make expert witness fees able to be awarded as costs it would have said so.

Justice Johnson dissented. He agreed with the majority that the court should not “be seduced by emotionally compelling arguments, in contravention of a strict application of the law” but at the same time would have held that the public policy argument behind the act should be used to construe its meaning. The public policy behind awarding attorneys fees and (some) costs is to lower the financial bar to entry, so that justified claimants are not deterred from seeking compensation. The other purpose is to encourage those who have a liability under workmans comp to honor it. Justice Johnson argues that both of these would be served by the award of expert witness fees in cases where the employer was not consciously trying to comply with the law.

Decision: In re A.J.S.

March 27, 2009

March 27th. The Kansas Supreme Court has issued its decision In the matter of A.J.S. (No. 99,130) an adoption proceeding from Sedgwick County. In a unanimous decision, authored by Justice Beier, the court overturned one of its own precedents dating from 1982 and reversed a District Court decision which had held that the Indian Child Welfare Act (ICWA) did not apply to the circumstances of this adoption, where the baby’s unmarried father and his tribe sought to block the adoption of the child by the mother’s family. The decision had been stayed for some time, due to a paternity test.

The child’s father is an Indian, a member of the Cherokee Nation. His mother is not an Indian. [It should also be noted that the father maintains that the mother is an Indian, while the mother maintains that the father claimed not to have been]. The child was conceived after the two had been dating for one month. After the child was born the mother initiated proceedings to terminate the father’s parental rights and have the baby adopted by members of her family. The father asserted that the ICWA should apply to the proceedings. The Cherokee Nation sought to intervene in the case, also citing ICWA which gives tribes standing to intervene separately from the parents in child custody cases involving Indian children. The District Court ruled that ICWA does not apply since the child had never been part of an Indian family. The District Judge’s ruling stems from a 1982 Kansas Supreme Court decision (In Re Baby Boy L.), that has become known as the ‘existing Indian Family exception’.

In that case the Kansas Supreme Court had held that Congress had created the ICWA in response to cases where Indian families had been broken up by State Welfare Agencies and their children adopted by non-Indians. It was not intended to apply in a situation where an unmarried non-Indian mother of a child that had never been a member of an Indian home wanted her baby adopted by non-Indians.

Since that time some other states have followed this doctrine taking their lead from Kansas, but most have not. In some of those states, the legislatures have amended the laws to end the exception. At the same time, the United States Supreme Court has not stepped into the matter, save for one case which was decided on different grounds but which emphasized the tribe’s distinct right to intervene even in an adoption proceeding which both parents supported.

The Kansas Supreme Court decision draws heavily on this U.S. Supreme Court case (Mississippi Band of Choctaw Indians v. Holyfield, 1989), noting its reliance on Congressional record to show that a major motivating factor in the passage of ICWA in 1978 was to protect the interests of the tribes. The decision today also refers to several law review articles covering the ‘existing Indian Family exception’ whose titles make clear their overall position on the subject (e.g. “…The States’ Attempt to Slaughter Tribal Interests…”, “…Rerouting the Trail of Tears?”).

The opinion of the Court describes the above in much more detail and indicates the controversy surrounding it, and then rules that henceforth the “existing Indian Family exception” does not apply in Kansas and In re Baby Boy L. is overturned. As a result the adoption proceedings must continue with ICWA applying.

While this case has been proceeding the child in question has been living with its intended adoptive parents. Justice Beier’s opinion gives no clue as to the age of the child or the timeframes involved. It is important to note that this appeal is an interlocutory one – i.e. has happened relatively quickly and early on in the case. The District Court decision which was appealed concerned the applicability of ICWA. The District Court had not yet ruled on the termination of the father’s parental rights or finalized the adoption.

March 27th Unpublished Opinions

March 27, 2009

March 27th. The Kansas Supreme Court has issued 12 unpublished opinions. Several published opinions were also issued today, and we will be covering them later tonight and over the next few days. The unpublished opinions were:

Docket Number / Case Name / Judge / Disposition / County
99,308 — State v. Torres — Per Curiam — Sentences vacated, and case remanded with directions — Sedgwick.
99,576 — State v. Dillard — Per Curiam — Affirmed in part and dismissed in part — Johnson.
100,107 — State v. Vaughn — Per Curiam — Affirmed — Montgomery.
100,268 — State v. Nave — Per Curiam — Appeal dismissed — Shawnee.
100,301 — State v. Kane — Per Curiam — Dismissed — Douglas.
100,395 — State v. Barnes-Catlett — Per Curiam — Affirmed in part and dismissed in part — Johnson.
100,549 — State v. Lemon — Per Curiam — Affirmed in part and dismissed in part — Riley.
100,550 — State v. McMurray — Per Curiam — Affirmed in part and dismissed in part — Marshall.
100,558 — State v. Blackburn — Per Curiam — Affirmed — Butler.
100,622 — State v. Obermeier — Per Curiam — Affirmed — Miami.
100,641/100,642 — State v. Lamore — Per Curiam — Affirmed — Republic.
101,187 — In the Matter of Barton P. Cohen and Mary Davidson Cohen Charitable Funds — Per Curiam – – Affirmed — Johnson.

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. These cases are not available online. If anyone is aware of any controversy surrounding them, please contact this blog and we will investigate.

Constitutional Amendment would overrule Court decision

March 25, 2009

March 25th. By a huge margin both houses of the State Legislature have passed a proposed constitutional amendment, that will appear on the next General Election or Special Election ballot for ratification. The amendment would alter the State Constitution to overturn the 104 year-old decision in City of Salina v. Blaksley, which held that the right to bear arms was collective in nature. The proposed new wording would alter section 4 of the Kansas Bill of Rights to state:

A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose

in place of the existing

The people have the right to bear arms for their defense and security

The remaining wording about standing armies would remain untouched. The proposed amendment passed the State Senate by a margin of 39-1 and the House by 116-9, far exceeding the necessary 2/3rds requirement.

The Kansas Supreme Court’s decision in City of Salina v. Blaksley is notable mainly for being the first court decision which invoked the now debunked “collective rights” interpretation of the right to bear arms. The decision was issued by a unanimous court in November 1905. At present this case and its progeny remain valid law in the State of Kansas (although the U.S. Supreme Court’s decision last year in District of Columbia v. Heller contains it to the state constitution). However, in the 1970s the court backtracked somewhat from the pure collective rights position when it found that a municipal ordinance banning the transportation of a firearm in all circumstances to be over broad.

This week at the Kansas Supreme Court

March 20, 2009

March 20th. The Kansas Supreme Court issued no opinions this week. Opinions can be issued at any time, but are normally released on Fridays.

Note: The Court is in session next week (March 23rd – March 26th). It is therefore quite likely that opinions will be issued next week. Proceedings of the Court are open to anyone who is in Topeka and has the time to attend. They will also be available to listen to via the Court’s website.

Decision: State v. Decker

March 17, 2009

March 13th. The Kansas Supreme Court has issued its decision in State v. Decker (No. 98,226) a direct appeal of a murder conviction. In a unanimous opinion, written by Justice Rosen, the Court rejected Jay Decker’s appeal against his conviction for the murder of his 6 month old daughter Risha.

Decker was living with Risha’s mother, Brandi Hendrickson, in 2005 when (while Hendrickson was at work) he called 911 and requested that the paramedics attend his daughter. The paramedics were unable to revive the baby and Decker gave a series of conflicting accounts to various police officers as to how the baby had come to be injured. He was charged with and convicted of felony murder, the State arguing that the child had been killed during the abuse he inflicted upon her.

Decker made six claims on appeal:

  • That the trial court should not have allowed the admission of autopsy pictures into evidence since they were too graphic and would have an emotive impact on the jury.
  • That the trial court wrongly allowed evidence of a previous incident involving Decker and his other daughter to be admitted.
  • That the trial court should have allowed Decker to introduce testimony which he claimed would show that Hendrickson might have committed the child abuse.
  • That the prosecutor committed misconduct by remarking in his summing up that Decker was no longer presumed innocent.
  • That the trial court refused to give an instruction to the jury concerning accomplice testimony about Hendrickson’s testimony.
  • That these errors cumulatively denied him a fair trial.

The Court ruled against Decker in five of these. On the matter of autopsy pictures it ruled that the pictures were appropriate for admission since they were relevant to determining the cause of death, which was one of the issues under dispute in the trial since Decker claimed that Hendrickson could have been responsible. In the previous incident of child abuse Decker had grabbed his other daughter by the throat, in this case he admitted (among other things) to handling Risha by the throat, although he claimed that this was accidental. This was enough for the Court to find that there were sufficient grounds for this evidence to have been admitted, since the actions were similar.

The witness testimony which was excluded had been ruled inadmissible since the trial court did not find that it spoke to the defence’s theory of the case (which was that Hendrickson might have committed the fatal abuse). The excluded testimony was of a Lorna Henson, who Hendrickson had lived with, who was to testify that Hendrickson had once acted in a threatening manner to Henson’s child, as an overreaction to Henson’s child grabbing Hendrickson’s elder child’s hand. The Kansas Supreme Court sided with the trial court on this matter, finding no logical connection between such an overreaction and claims that Hendrickson abused her own child.

Hendrickson had initially been charged with felony child endangerment, but in exchange for testimony against Decker this was dropped to a misdemeanor. At trial Decker sought a jury instruction that would caution jurors about Hendrickson’s testimony on the grounds that since she had not reported the alleged abuse she was an accomplice. The trial court rejected this instruction. The Supreme Court again sided with the trial court on this matter, noting that failure to report a crime does not rise to the level of complicity and that in any case Decker’s theory of defense did not suggest that Hendrickson was an accomplice at all, rather that she was the one who might have committed the abuse.

Decker prevailed on one of his claims, namely the prosecutorial misconduct charge. The prosecutor had included the following statement in his summing up:

“And another thing is he’s no longer presumed innocent. Case is in. Evidence is in. At this point based on everything that we’ve proved, he’s guilty.”

The Court held that since this plainly misstated the law (defendants are presumed innocent until the jury finds otherwise) it did constitute misconduct. However, the Court also found that there was no ill will behind the statement (the Court agreed that the prosecutor was ineffectively trying to say that the burden of proof had been met by his case) and that the misconduct was not so flagrant as to rise to the level of plain error. Therefore despite ruling for Decker on the point, the Court held that the error was harmless.

Since the Court only found one error among those Decker asserted, it also ruled that these could not rise to the level of cumulative error. Therefore the Court rejected Decker’s appeal and affirmed his conviction.

Decision: State v. McReynolds

March 17, 2009

March 13th. The Kansas Supreme Court has issued its decision in State v. McReynolds (No. 97,936) a direct appeal of a murder conviction from Wyandotte County. In a unanimous opinion, written by Justice Johnson, the Court affirmed Brandon McReynolds’ convictions for first degree murder, aggravated robbery and conspiracy to commit aggravated robbery. The court also affirmed his sentences for the crimes (life without parole until after 20 years and 34 months).

On August 12th 2005 Brandon McReynolds and three others lured Zhihai Cui, a restaurant delivery driver, to a house in Kansas City, Kansas and beat and stabbed him to death. The gang netted a little more than $50 for their troubles. Police quickly identified the suspects after searching the home of Tamara Ford (McReynolds’ cousin) next to where Cui was killed where they found bloody knives. Ford gave up the names of his attackers.

When arrested on August 13th, and in a statement three days later, McReynolds signed a Miranda waiver and admitted to police that he had been part of the gang, but claimed that he did not deliver any of the life threatening injuries. When brought to trial, he changed his story and claimed that he was high on PCP when he gave the statements. The trial court held a hearing and admitted the tapes of his confessions as evidence.

On appeal, McReynolds’ makes a flurry of claims as to why his conviction should be reversed, all of which fail. The two most significant are:

  • An allegation that the prosecutor engaged in misconduct, by seeming to endorse the reliability of the police testimony and during voir dire by saying that everyone deserved a fair trial, even if they were guilty (paraphrasing).
  • A claim that the judge improperly relied on past testimony in other cases when making a finding on the reliability of the police officer’s testimony when deciding to admit the taped confession evidence.

The Court rejected the first of these, finding that the statements fell within the wide latitude available to prosecutors when choosing their words, though the court hinted that it was not happy about the choice of wording in the voir dire example.

The Court was also troubled by the judge’s apparent reliance on prior experiences with the police officer on the case, but found that since the evidence supporting the admission of the taped statements was ample and broad based, this was not a reversible error.

Finally, the Court rejected McReynold’s contention that the Kansas Sentencing Guidelines improperly allow evidence of past convictions to influence sentencing without the facts being tried before a jury, noting that it has already found the Kansas Sentencing Guidelines not to fall foul of Apprendi or Cunningham v. California.