Archive for July, 2009

Donnie Ventris loses the rest of his appeal

July 25, 2009

July 24th. When the United States Supreme Court recently overturned the Kansas Supreme Court’s ruling in Kansas v. Ventris, it remanded the case for further proceedings. The Kansas Supreme Court has now issued its ruling on the remainder of the case. In a unanimous opinion, written by Justice Eric Rosen, the Court vacated its previous ruling in favor of Donnie Ventris and reinstated and affirmed the Court of Appeals’ decision affirming his conviction for aggravated robbery and aggravated burglary. In doing so it dispensed with two arguments Ventris had made which it had not addressed previously.

The background to this case has been covered extensively on this blog, linked articles all bear the KSvVentris tag. Ventris and his girlfriend, Rhonda Theel, were involved in the shooting death of Ernest Hicks, and left the scene of his murder with money and other possessions of his. Theel turned state’s evidence. A cellmate of Ventris’ (placed in the cell as a mole) spoke to him about the killing and also presented evidence at trial. Ventris was actually acquitted of the murder charge, but convicted of aggravated burglary and aggravated robbery. Ventris’ argued that the cellmate’s testimony should have been barred, even for the limited use (counteracting Ventris’ own testimony). The Kansas Supreme Court initially agreed with Ventris but the U.S. Supreme Court overturned that decision.

In its first opinion the Kansas Supreme Court did not address Ventris’ argument that testimony by Theel that he had forcibly strip-searched her a month before the killing should have been disallowed. Ventris argued that this error entitled him to a new trial. The Kansas Supreme Court has now addressed this issue and found that while the testimony should not have been allowed, it constituted a harmless error and thus Ventris does not get a new trial. The Court ruled that since the evidence did not go towards proving anything that was before the jury it failed the test for whether evidence is probative under State v. Gunby.

The Court also rejected Ventris’ Apprendi claim regarding his sentence based on his prior criminal history score.

The full text of the Court’s opinion is here.

Ventris’ argued that the cellmate’s testimony should have been barred, even for the limited use (counteracting Ventris’ own testminony). The Kansas Supreme Court initially agreed with Ventris but the U.S. Supreme Court overturned that decision.

Decision: State v. Houston

July 21, 2009

July 17th. The Kansas Supreme Court has issued its opinion in State v. Houston (No. 98,373), an appeal of a murder conviction. In a unanimous opinion, written by Justice Lawton Nuss, the Court upheld Michael Houston Sr’s conviction for the second-degree murder of Joshua Johnson.

The Houston and Johnson families who lived in KCK became involved in a long running feud following Houston’s having a sexual relationship with Johnson’s girlfriend. Over time many incidents took place between the two men, and Johnson attacked members of Houston’s family. One day, in 2003, Houston was driving his car and had to swerve out of the way of Johnson’s car door as it opened. The pair had nearly come to blows earlier that day, and Houston jumped out of his vehicle armed with a 12ga shotgun. Johnson was exiting his vehicle. Houston shot him dead. At trial (though not in his initial police statement) Houston maintained that Johnson had been reaching for what he believed to be a weapon and that he had shot him in self defense. Houston was convicted of second-degree intentional murder.

On appeal, Houston raised a number of issues. On most of these, the Kansas Supreme Court adopts the ruling in the case of the Court of Appeals, namely that:

  • Houston was not prevented from presenting his theory of self-defense by the exclusion of evidence about Johnson attacking his family members, since evidence of his having done that was introduced anyway by various witnesses and those facts did not speak to Houston’s state of mind when he shot Johnson. In contrast, Houston had been able to enter evidence about Johnson’s previously threatening him.
  • The Prosecutor did not commit misconduct during a chain of questions during which Houston mentioned he had been evaluated on his mental condition at Larned State Hospital.
  • Houston had sought to suppress evidence that Johnson knew Houston had a gun. His pre-trial motion was rejected. The Court held that the issue was not properly preserved for appeal since no objection was made at the time the evidence was actually introduced, which is required.
  • Houston’s Apprendi claim was rejected.

In addition to the above the Kansas Supreme Court also rejected Houston’s assertion that the jury should have been presented with the option of convicting him of the lesser-included offense of Involuntary Manslaughter. Houston’s theory for this was that he had acted lawfully in self defense but used excessive force, and had therefore not intended to kill Johnson. In its ruling, the Kansas Supreme Court adopted a different tack to the Court of Appeals finding that under the circumstances no rational jury could have convicted him of involuntary manslaughter since there was no possibility that in firing his gun at close quarters he had not formed an intent to kill Johnson. In making this ruling, the Kansas Supreme Court also made it clear that loose wording in some recent opinions did not reflect any move away from the standard that a lesser included instruction is not needed when a jury could not reasonably convict a defendant of the crime. That standard was reaffirmed in this case.

Decision: State v. White

July 17, 2009

July 17th. The Kansas Supreme Court has issued its opinion in State v. White (No. 100,264), a motion to withdraw a plea. In a unanimous opinion, written by Justice Marla Luckert, the Court held that (contra the District Court’s ruling) Harry White had rebutted the presumption that he had received effective assistance from his lawyer. The Case was therefore remanded for further fact finding as to whether he would be able to withdraw his no-contest plea to aggravated indecent liberties with a child under the age of 14.

Harry White sexually abused three girls many times over a period of years spanning the introduction of Jessica’s Law. He was charged with 8 counts relating to that conduct, including one under Jessica’s Law. Prior to trial, White entered into a plea agreement that he would plead to the Jessica’s Law charge and the others would be dropped. White was 69 years old at the time he was charged.

White’s plea agreement incorrectly stated that the maximum sentence he could receive would be one of not less than 25 years in prison. In fact his maximum sentence would be life, without the possibility of parole for 25 years. Prior to sentencing, White appears to have figured out that he reaped no net benefit from having the other 7 charges dismissed and sought to withdraw his plea.

His argument was that the plea agreement was incorrect and therefore he received ineffective assistance of counsel and did not knowingly make the plea. The District Court rejected his motion, finding that the plea agreement was clear (in terms of the potential consequences for White, i.e. that he would die in prison) and stated that during the enactment of the plea agreement the Court had correctly reviewed it with White (which can correct an error in a written agreement).

The Kansas Supreme Court reversed the District Court on this point. It found that the plea agreement was not clear, and that the transcript of the proceeding reviewing the plea agreement included a potentially misleading statement by the Judge which White might have misinterpreted to mean he would be eligible for probation.

Therefore, the District Court’s ruling on the motion to withdraw the plea was reversed and the case remanded back to the District Court to consider the remaining parts of the test for ineffective assistance of counsel, and a determination whether White’s plea may be withdrawn.

July 17th Disciplinary Decision

July 17, 2009

July 17th. The Kansas Supreme Court handed down an attorney discipline decision. The case was In re Rost (No. 101,746). In the interests of balancing our workload against reader interest we do not write up Attorney Discipline cases, except in unusually newsworthy circumstances.

Decision: In re Colt

July 17, 2009

July 10th. The Kansas Supreme Court has issued its opinion in the case of In re the Treatment and Care of Colt (No. 98,105), a sexually violent predator indefinite commitment case. In a 5-2 decision, written by Justice Carol Beier, the Court held that evidence of prior bad acts admitted at Colt’s hearing was not prohibited under the Court’s State v. Gunby decision, and that the admission of non-sex related crimes was not problematic either.Justice Eric Rosen, joined by a temporarily appointed member of the Court, dissented and would have applied Gunby to these proceedings. Note: Judge Melissa Standridge of the Court of Appeals served on the Court in place of former Chief Justice Kay McFarland.

John Colt had a long criminal history, and a history of psychiatric problems. In 2001 he was convicted of aggravated sexual battery and aggravated burglary after breaking into a neighbor’s apartment and attempting to rape them. The Shawnee County District Attorney moved to have Colt detained indefinitely as a sexually violent predator. A jury found that he was one and the judge ordered his detention.

Colt appealed his detention. He argued that the introduction of evidence concerning his past crimes should have been prohibited under the Kansas Supreme Court’s decision in State v. Gunby which restricted the ways in which the State could refer to prior crimes by a defendant in proving its case. He also argued that most of his criminal history related to non-sex crimes and therefore should not have been admitted.

The Kansas Supreme Court disagreed. Citing In re Miller, decided on the same day and which covered the same issues, the Court held that K.S.A. 60-455 (the prior bad acts statute) and State v. Gunby did not apply to civil commitment proceedings. Furthermore the Court held that the non-sex crimes raised in evidence were relevant and probative. In finding this, the Court pointed out that at issue in sexually violent predator commitment proceedings is not the detail of the criminal history, but what the fact of it says about the defendant’s mental state. In this case the long criminal record, contributed to the psychological diagnosis that allowed Colt’s commitment.

Justice Eric Rosen, joined by Judge Standrige dissented with a single line referring to his dissent in In re Miller.

Decision: In re Miller

July 17, 2009

July 10th. The Kansas Supreme Court has issued its opinion in the case of In re Care and Treatment of Miller (No. 97,273), an appeal against indefinite detention as a sexually violent predator. In a 5-2 decision, written by Justice Carole Beier, the Court held that Richard Miller was properly committed despite the use of evidence of his committing other crimes being introduced at his commitment hearing. In doing so the Court held that its State v. Gunby holding limiting the use of prior bad acts did not apply to persistent sex-offender commitment proceedings. Justice Eric Rosen, joined by a temporarily appointed member of the Court, dissented and would have applied Gunby to these proceedings. Note: Judge Melissa Standridge of the Court of Appeals served on the Court in place of former Chief Justice Kay McFarland.

Richard Miller committed aggravated criminal sodomy on a 15 year old girl in 1980. He was convicted of burglary in 1992. He has a long criminal history, rich with other crimes and court appearances. The Johnson County DA sought to commit him as a sexually violent predator. Kansas law provides that someone who has been convicted or charged with a sex-offense and who has a mental abnormality that makes them likely to commit further acts in the future may be indefinitely committed, provided a Jury finds that they are a sexually violent predator.

At trial, evidence was introduced by various means about past offenses that Miller had been charged with where the charges were dropped. These included an attempted rape charge that stemmed from a burglary he committed on a duplex where a minor was in the bath. Evidence of non-sexual crimes was also introduced (including the 1992 burglary).

On appeal, Miller argued that this evidence amounted to evidence of prior bad acts being used in contravention of K.S.A. 60-455, which limits the use of this evidence to ensure a fair trial in the case at hand. The Kansas Supreme Court’s decision in State v. Gunby has further restricted the use of this evidence through its construction of this statute.

The Court determined that neither K.S.A. 60-455 nor Gunby apply to proceedings such as this. It cited a case which preceded Gunby (State v. Hay) which held that K.S.A. 60-455 did not apply to such cases since it exists to prevent a criminal’s propensity to have committed one particular crime being used to prove that they have in fact committed another particular crime. In contrast, in these proceedings the determination is forward facing – determining whether the criminal is likely to commit another crime in the future.

Miller’s appeal was thus dismissed, along with a number of other objections he had raised (e.g. that the State should not have been allowed to introduce witnesses to prove the 1980 crime since Miller had been willing to stipulate to it). All of Miller’s claims were rejected, but the holding regarding K.S.A. 60-455 is doubtlessly the most significant.

Justice Eric Rosen dissented, expressing frustration that the Court’s Gunby decision was being curtailed. He would have held that K.S.A. 60-455 did apply to these cases and that the sort of evidence the majority opinion would allow to be admitted would jeopardize defendants rights to a fair trial. He noted that the Legislature had crafted these type of commitment proceedings after criminal law, by introducing a jury. Judge Standridge joined Justice Rosen’s dissent.

Decision: State v. Salas

July 17, 2009

July 10th. The Kansas Supreme Court has issued its opinion in the case of State v. Salas (No. 99,830) concerning post-conviction DNA testing for certain kinds murderers. In a unanimous decision, written by Justice Marla Luckert, the Court held that second-degree murderers do not have a right to post-conviction DNA testing under a statute which grants access to the testing to first degree murderers and rapists.

Abel Salas was convicted of intentional second-degree murder for the shooting death of Tracie Simon. Salas was acquitted of premeditated first degree murder. K.S.A. 21-2512 allows anyone convicted of first-degree murder, felony murder or rape to petition the court for DNA testing of forensic evidence from the crime scene. In State v. Denney (2004) the Kansas Supreme Court held that the statute which does this broke the Equal Protection Clause of the 14th Amendment to the United States Constitution by not extending this DNA testing right to those convicted of aggravated criminal sodomy, on the grounds that the elements of that crime and rape are substantially the same (differing only in terms of which body part is violated). Salas argued that this precedent should therefore apply to murder cases and entitle him to request DNA testing of evidence from the crime scene of his victim, just as if he had been convicted of first-degree murder.

The Court disagreed and rejected Salas’ argument. Essentially the ruling boils down to a comparison of this this case with Denney. In that case the Court had held that the crimes of aggravated criminal sodomy and rape were so similar that allowing rapists to petition for DNA testing while not allowing [aggravated criminal] sodomites to do so violated the Equal Protection rights of the latter. The elements of the two crimes were the same, the only reason he was charged with aggravated criminal sodomy and not rape was because of where he had violated his victim’s person. Salas was seeking to argue that first and second degree murder were essentially the same, differing only in the matter of premeditation. The Court took the view that this was true, and for that reason the two crimes were substantially different. That premeditation was the key element of the crime that separated first and second degree murder and therefore those convicted of one could be distinguished from those convicted of the other without causing Equal Protection issues.

It should be noted that the Court limited its ruling by emphasizing that under existing United States Supreme Court precedent the Equal Protection argument must be driven by the argument made by the person bringing the challenge. Therefore the court limited itself to the arguments which Salas had brought up.

Opinion: Honestly, this opinion is not terribly convincing. There is nothing in it that truly says why the facts of Denney warranted an Equal Protection challenge, but those of this case do not. Both cases hinge on a subjective decision as to how similar the elements of two crimes are. The truism that Second Degree Murder is not the same as First Degree Murder because of the differences between the two crimes definition, could equally be applied to the crimes in Denney. It almost reads as if in Denney the Court saw a law that should have been written to apply to both offenses and reached for the sledgehammer of the 14th Amendment to make it so. Having done so, it now must back away from that ruling lest it unleash mayhem in other areas where different crimes have differing elements that overlap closely.

Decision: State v. Bello

July 10, 2009

July 2nd. The Kansas Supreme Court has issued its decision in State v. Bello, an appeal against a conviction for child abuse. In a unanimous opinion, written by Justice Lee Johnson, the Court affirmed Juan Jose Bello’s conviction for aggravated criminal sodomy and aggravated indecent liberties with a child. However the Court vacated his ‘Jessica’s Law’ 25-years-without-parole sentence on the grounds that the State had not submitted the fact of his being over 18 years old to the jury for consideration. Bello will therefore be re-sentenced under the Kansas Sentencing Guidelines to a shorter sentence. No criminal history score information is included in the opinion to allow a calculation of how long Bello will likely serve.

Bello molested a seven year-old girl who was visiting his home with her parents. After Bello had twice gone to the room in which she and her brother were sleeping and molesting her, the girl told her parents. After a fight, police were called and Bello was arrested and charged.

At trial, Bello procured an expert witness who was to present a theory that the girl had been abused before and that she had mistakenly accused Bello. The “supporting evidence” for this abuse was an affidavit from Bello’s wife that she had seen the girl kiss her brother and that she had seen her climb into Bello’s lap. Bello filed a motion to allow this “evidence” to be introduced under the provisions of the Kansas Rape Shield Law which normally precludes evidence of past sexual activity by the victim unless the trial court allows it. The trial court denied the motion.

On appeal, Bello argued that the Kansas Rape Shield Law did not apply to situations where the prior acts were victimization in a crime and not consensual activity. The Supreme Court opinion indicates that the Justices found this to be an interesting argument but rejected it because Bello had not objected to the Statute at trial and therefore could not bring it up on appeal. Indeed, Bello had filed a motion under the terms of the statute he now challenged. One might also say that the Legislature is on notice to ensure the Rape Shield Law can also be used to protect victims in these situations.

Bello’s appeal of his conviction was thus rejected. However he also appealed his 25 year sentence on the grounds that a different sentence is applied to this crime depending on whether the defendant is over 18 or not. The State had not specified  Bello’s age in the charge, and the Jury was not asked to find that Bello was indeed over 18. Therefore, following the Apprendi rule, the Kansas Supreme Court held that Bello cannot be sentenced to the harsher sentence which applies to those over 18. His case was therefore remanded to the trial court for sentencing under the Sentencing Guidelines and not ‘Jessica’s Law’.

Decision: State v. Casady

July 9, 2009

June 26th. The Kansas Supreme Court has issued its decision in State v. Casady (No. 99,023) an appeal against the imposition of a Bureau of Indigent Services (BIDS) application fee. In a unanimous opinion, written by Justice Eric Rosen, the Court held that the $100 BIDS Application Fee is constitutional both on its face and as applied to this case.

Cynthia Casady was prosecuted for posession of marijuana, drug paraphenalia and prescription drugs without a prescription. She was found to be indigent and counsel was appointed. As part of this process Kansas Law required that she pay a $100 BIDS Application Fee. Casady pled guilty to the prescription drugs charge and the other two were dismissed.

On appeal, Casady argued that the BIDS fee interfered with her Sixth Amendment right to counsel. The Kansas Supreme Court disagreed, finding that the statutary fee does not interfere with the right to counsel since there are safeguards which ensure that collection of the fee need not take place before the trial is over and in cases of manifest hardship the fee can be waived by the court. As a result, the right to counsel remains unaffected by the fee.

Decision: State v. Henning

July 9, 2009

June 26th. The Kansas Supreme Court has issued its decision in State v. Henning (No. 98,118) a Fourth Amendment unreasonable search case. In a unanimous opinion, written by Justice Carol Beier, the Court held that the Kansas Law which allowed police to search vehicles of arrestees for evidence related to ‘a’ crime is unconstitutional. In doing so it applied the recent United States Supreme Court decision of Arizona v. Gant.

Randy Henning had a warrant out for his arrest. Lyon County Deputy Sheriff Patrick Stevenson noticed him and arrested him when he went to his car. After the arrest, Stevenson searched the car and found drug paraphernalia. Henning and Kelly Zabriskie (who had been in the driving seat of the car) were arrested for possession. Defence Counsel moved to suppress the drug evidence, but its presence was upheld.

Kansas Law had previously stated that in a search incident to arrest one of the reasons for searching the area immediately surrounding the arrestee would be ‘Discovering the fruits, instrumentalities, or evidence of the crime’. In a 1996 decision, the Kansas Supreme Court had held in State v. Anderson, that the word ‘the’ in that sentence meant that the State could not introduce evidence that was found that was unrelated to the crime that was the reason for the search. In 2006 the Legislature reworded the law to use the word ‘a’ instead of ‘the’.

The Kansas Supreme Court held that this change had the effect of altering the Statute so that the police would be authorized to search for evidence of any crime. This law had taken effect five days before Stevenson searched the car.

The Court then analyzed the law under the 2009 U.S. Supreme Court decision Arizona v. Gant. In that case that Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Applying Gant to this case, meant that the Court concluded that the statute was unconstitutional since it authorized searches outside of those narrow limits.

Opinion: While we believe the decision in this case was correct, in ruling this way the Court delved into legislative history to prove what the Legislature intended to do when it replaced ‘the’ with ‘a’. This strikes us as unnecessary as contrary to the Court’s opinion, the Legislature’s intent was apparent from the plain words of the change. We will therefore watch for the circumstances in which this case is cited supporting the use of legislative history.