Archive for the ‘Federal Constitution’ Category

Decision: State v. Leshay

September 1, 2009

August 28th. The Kansas Supreme Court has issued its opinion in State v. Leshay (No. 99,725), an appeal of a dismissal of drug charges in District Court. In a unanimous decision, written by Justice Lee Johnson, the Court held that the Sixth Amendment Right to Confront one’s accusers does not apply at a Preliminary Hearing to a forensic lab report, where Kansas law does not require a lab technician to testify. Note: Court of Appeals Judge Christel Marquardt served on this case, in place of former Chief Justice Kay MacFarland.

Wendell Leshay was accused of possessing Cocaine. After a Preliminary Hearing following his indictment, he moved to dismiss the charges against him on the grounds that the Kansas Bureau of Investigation (KBI) lab technician who had prepared the forensic evidence did not appear for cross-examination at the hearing. The District Court agreed, holding that the United States Supreme Court’s decision in Crawford v. Washington (2004) meant that the Confrontation Clause of the Sixth Amendment required that the technician be present.

The State appealed and the Kansas Supreme Court reversed the decision of the District Court. The court noted the U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts (2009), which made it clear that the confrontation clause applies to forensic evidence reports, but ultimately held that the Sixth Amendment Confrontation Clause does not apply at a Preliminary Hearing, rather it applies at trial. The Preliminary Hearing is a statutory creation, and therefore there is not a Constitutional obligation to allow confrontation regarding testimonial evidence introduced there.

The Court did note that there might be a Due Process argument about the inability to confront an accuser at a Preliminary Hearing. However, Leshay had not raised this argument in the District Court and therefore it was not available within the appeal.

The District Court’s dismissal of the charges was reversed and the charges reinstated. The case was then remanded back to the District Court to proceed.

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Decision: State v. Schultz

August 13, 2009

July 24th. The Kansas Supreme Court has issued its opinion in State v. Schultz (No. 98,727) a state appeal against the suppression of physical evidence following a failure to deliver Miranda warnings to an alleged Topeka drug dealer. In a unanimous opinion, written by Justice Carol Beier, the Court held that the District Court should not have suppressed physical evidence discovered in a consensual search that followed an un-Mirandized custodial interrogation. Note: Judge Christel Marquardt of the Court of Appeals took part in this decision in place of Justice Rosen.

Ryan Schultz was in his rented apartment with his juvenile girlfriend smoking pot when a pest control worker noticed the marijuana and reported this fact to the apartment manager. She called the Topeka P.D. Two police officers arrived at the scene and knocked on Schultz’ door. Schultz allowed them in, initially to stand by the door. They spotted the marijuana on the table and noticed the smell of it in the air and began to question him. Throughout the interrogation no Miranda warnings were given. The girl asked to leave but the Police told her she could not. After implying that they would easily get a search warrant Schultz agreed to the apartment being searched. Large quantities of pot were discovered and he was arrested, taken downtown and Mirandized. [During these proceedings a written consent to search was taken from him as well].

Schultz was charged with dealing in marijuana. At trial the District Judge ruled that the interrogation in the apartment was a custodial one (i.e. one which while not in the police department was the functional equivalent of such an interview) and since no Miranda warnings were given suppressed the evidence of it. The Judge also suppressed all physical evidence gathered from the scene. The Court of Appeals upheld the District Court’s ruling and the State appealed to the Kansas Supreme Court.

In its decision, the Kansas Supreme Court affirmed the suppression of the un-Mirandized statements, finding that the interview in the apartment met all the characteristics necessary to be covered under Miranda. However, the Court reversed the suppression of the physical evidence, citing and quoting extensively from the United States Supreme Court’s decision in United States v. Patane. In that case the U.S. Supreme Court held  that physical evidence gathered after a defendant went un-Mirandized was not subject to an exclusionary rule, provided that police coercion was not involved. Rather, the exclusionary rule only applied to the statements which if introduced at trial would violate the right against self-incrimination. Since the search of Schultz’ apartment was a valid and consensual one, the mere fact that it happened after a botched interview process did not mean that the evidence should be excluded.

The District Court’s suppression ruling was therefore vacated as far as the physical evidence was concerned and the case remanded for further proceedings.

Analysis: United States v. Patane was a late Rehnquist era decision, handed down in June 2004. It was a plurality opinion, with Chief Justice Rehnquist and Justices Scalia and Thomas joined in the result by Justices  O’Connor and Kennedy and the four liberals in dissent. Justice Thomas wrote the main opinion. With several personnel changes on that Court since then, this case may be a candidate for a further appeal.

Decision: State v. Gonzales

August 13, 2009

July 24th. The Kansas Supreme Court has issued its opinion in State v. Gonzales (No. 99,657) a child sex abuse case. In a unanimous opinion, written by Justice Marla Luckert the Court affirmed Gerald Gonzales’ convictions for aggravated indecent liberties with a child, rejecting his complaint of ineffective assistance of counsel. However, the Court vacated his Jessica’s Law sentence on the grounds that the jury was not asked to find that the state had proven beyond a reasonable doubt that Gonzales was over 18 at the time the crimes were committed.

Gerald Gonzales repeatedly forced his girlfriend’s daughters (aged 14 and below) into performing sex acts with him. He was arrested and convicted on multiple counts. During the trial he had disagreements with his lawyer and sought a retrial on the grounds of ineffective assistance of counsel. The Trial Court rejected that, finding that his attorney’s performance was acceptable. On appeal he re-argued this matter as well as seeking to have his life without parole for 25 years sentence vacated on the grounds that his age (a factor in sentencing) was not presented to the jury for a finding.

The Court upheld the District Court’s denial of Gonzales’ ineffective assistance claim, after reviewing the detail of what appeared to be a workaday dispute between a defendant and his lawyer. It also upheld Gonzales’ convictions, since his date of birth had appeared on the charging sheet.

However, citing its recent decision in State v. Bello, the Court vacated  Gonzales’ sentence. It found that under Apprendi, the fact that Gonzales was over 18 was an element of the crime and therefore a matter for the jury to determine. Therefore Gonzales’ case was remanded for re-sentencing where he will receive a lesser sentence.

Analysis: It is becoming clear that a significant number of Jessica’s Law sentences in Kansas are going to be vacated as a result of the State v. Bello decision (how many depends on whether DA’s have included the defendants ages in evidence presented to juries, something many will not have done since it is usually obvious that a given child molester is over 18). The whole Apprendi regime hangs by a thread, however, and some have suggested that newly confirmed Justice Sonia Sotomayor may side with those who would overturn it. The Jessica’s Law cases that bubble up in the coming months may well present a good vehicle for such a challenge in which an obviously over-18 criminal is let off lightly because their age was not presented as something for the Jury to rule on. This blog will monitor the United States Supreme Court docket for signs of a certiorari petition by the State of Kansas. The United States Supreme Court has twice reversed the Kansas Supreme Court in criminal cases in recent years.

Decision: State v. Ransom

August 12, 2009

July 24th. The Kansas Supreme Court has issued its decision in State v. Ransom (No. 99,794), the third case arising from a Wichita Gang Scene murder spree. Previous coverage of the prosecutions which arose from this crime has been covered here and here. In a unanimous opinion, written by Justice Carol Beier, the Court rejected Karlan Ransom’s attempt to get a new trial based on the exclusion of evidence arising from a search his girlfriend consented to.

After the killings detailed in the previous coverage, police received a tip that they should check the house of Sharondi Washington (Ransom’s girlfriend), where Ransom stayed 6 nights per week. A large number of police officers descended on the house. Initially, Washington would not let them in but after coming out and speaking to them in a police car, Washington consented to the search. It should be noted that Washington subsequently claimed that she did not agree to the search (which was one of Ransom’s claims on appeal). The Court rejected this argument based on the District Judge’s determination after weighing the evidence that the police account was more convincing.

Once the police gained entry they encountered Ransom and others in the house, searched it and located evidence which was subsequently presented at trial. Ransom contends that since he had not given permission for the search it should have been suppressed. The Court rejected this argument, noting that in the United States Supreme Court’s 2006 Georgia v. Randolph ruling on this topic the defendant had objected to a search and the police had then gone to the man’s wife for permission. The Court held that while that sort of action (seeking out an occupant willing to consent to a search), was not permissible if someone had already objected to a search, it did not impose a duty on police to ascertain the permission of all members of a household who might object.

Ransom also lost on two other claims he brought – that certain evidence that was not connected to the ultimate charge was prejudicial and that a certain member of the Jury should have been stricken by the Judge and not by use of Ransom’s peremptory challenge. The former of these represented a change of argument by Ransom who at trial had argued that the evidence stemmed from the search he had unsuccessfully argued was illegal. The Court held that he procedurally defaulted on this point, but nonetheless rejected his argument on the merits finding the evidence was not unduly prejudicial. On the matter of the juror, there were some statements during voir dire about the juror’s difficulty in presuming Ransom’s innocence. The Judge was satisfied by the statements that when presented with Jury Instructions the juror would behave appropriately. Ransom used a peremptory strike but on appeal argued that the fact the Judge did not remove the juror may have passed misinformation to the other members of the jury about the way they should determine their verdict. The Kansas Supreme Court rejected this argument, noting that a District Judge is in a better position to decide which jurors ought to be removed and also noting that two other jurors were struck for similar (but more clear-cut) statements. This would have dispelled any misunderstanding on the part of the other jury members about the way to perform their job.

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. 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. 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.

Decision: State v. Youngblood

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Youngblood (No. 96,850). In a unanimous decision, written by Justice Johnson, the Court vacated the conviction of Galen Youngblood for felony possession of marijuana. The case implicates the Sixth Amendment right to counsel and the use of convictions obtained without counsel for subsequent sentencing enhancements.

Galen Youngblood was detained on a driving on a suspended license charge in 2004. He was caught disposing of a marijuana pipe and was therefore charged with possession of marijuana. A first offense is a misdemeanor but a second offense can be charged as a felony. Since Youngblood had a prior misdemeanor conviction from Newton Municipal Court for the same offense, he was charged with a felony.

The Sixth Amendment the Right to Counsel attaches to misdemeanors that result in a prison sentence. This offense was one such misdemeanor, although in Youngblood’s case he had received a suspended sentence with probation. Youngblood filed a motion to dismiss the charges on the grounds that his prior conviction had occurred without counsel. The waiver of counsel document from his trial was blank and although the State could show that he had subsequently signed a waiver (after the fact) there was not evidence that he had knowingly waived his right. The District Court also heard evidence from the original judge who could not independently verify that he had spoken with Youngblood about his waiving his right, but who said that he always spoke to defendants about this.

The District Court ruled against Youngblood and held that since he had not been jailed on prior occasion the Sixth Amendment did not apply. Youngblood was convicted and sentenced (the Court does not specify the length of his sentence). Youngblood appealed. The Court of Appeals upheld his conviction, ruling that although he had been denied his Right to Counsel in the prior conviction (since the onus is upon the State to prove that he had knowingly waived it) it was still valid for its use here.

The heart of the case comes down to the way various Federal Caselaw has been applied in Kansas. The United States Supreme Court held in a case in the 1970s that the test as to whether the Sixth Amendement applied to a misdemeanor was imprisonment. In 1994 the U.S. Supreme Court held that a prior uncounselled misdemeanor conviction could be used to enhance a subsequent sentence if the State could show that the defendant had waived his right to counsel. Therefore in State v. Delacruz (1995) the Kansas Supreme Court held that the same rule applied in Kansas. Subsequently, in Alabama v. Shelton (2002) the U.S. Supreme Court held that even a suspended sentence that does not result in jail time is covered by this Sixth Amendment rule.

The Court of Appeals had held that Delacruz was compatible with Shelton and had therefore held that the prior conviction could be used to enhance the new charge. The Kansas Supreme Court reversed the Court of Appeals, ruling that this case is different to Delacruz in any case because the Delacruz rule allows a validly obtained uncounselled conviction to be used. Since Youngblood had received a suspended sentence, under Shelton, the Sixth Amendment did apply and therefore his original conviction was not constitutionally valid. Therefore it could not be used to enhance his present charge to a felony.

Kansas v. Ventris – Decision

April 29, 2009

April 29th. As reported earlier, today the United States Supreme Court reversed the decision of the Kansas Supreme Court in a 7-2 decision. The case of Kansas v. Ventris revolved around whether prosecutors could use evidence gained in admitted violation of the 6th Amendment right to counsel to impeach a defendants testimony at trial (i.e. where a defendant claimed one thing in their testimony, could the prosecution bring otherwise inadmissible evidence in to show that the defendant was likely lying). The Kansas Supreme Court had said “No”, the U.S. Supreme Court said “Yes”.

Donnie Ray Ventris and Rhonda Theel were involved in the (decidedly murky) killing of Ernest Hicks in 2004. They left his property with $300 and his truck. After a tip-off police arrested the pair, but charges against Theel were dropped in return for her testimony that Ventris had shot Hicks. While in police custody, Ventris was placed in a cell with Johnny Doser, who had agreed to act as an informant. Doser was to testify at trial that Ventris admitted shooting Hicks. Ventris was charged with aggravated burglary and felony murder and chose to testify in his defense that Theel was the shooter. His attorney successfully objected to Doser’s testimony on the grounds that Doser’s presence in the cell amounted to uncounselled interrogation in violation of the 6th amendment. The State conceded this, but convinced the trial court to allow Doser to testify to impeach Ventris’ own testimony. The jury acquitted Ventris of murder but convicted him of aggravated burglary, which conviction was vacated by the Kansas Supreme Court in its State v. Ventris decision.

Today’s U.S. Supreme Court decision reverses this. Justice Scalia’s brief opinion contains two principle holdings. The first of these concerns when the 6th Amendment violation took place in this case. The second concerns what the appropriate remedy is for the violation. In her dissent in the State case, former Chief Justice Kay McFarland had suggested that there had been no 6th Amendment violation at all here. The State of Kansas did not raise this argument before the Supreme Court, and Justice Scalia’s opinion assumes (without ruling on the matter) that what happened did violate the 6th.

The U.S. Supreme Court decision found that the 6th Amendment was violated when Doser spoke with Ventris in the cell. As such, the violation had already occurred by the time of the trial. Ventris’ lawyers had argued that the violation of the right to counsel persisted into the trial itself at the point that the evidence was admitted since the evidence gathered while Ventris was without a lawyer prevented effective assistance of counsel. Justice Scalia rejects this, stating “A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt—even evidence so overwhelming that the attorney’s job of gaining an acquittal is rendered impossible.”

Having determined that the violation was already past at the time of the trial, the U.S. Supreme Court determined what the proper remedy would be. As suggested by the State of Kansas it draws analogies here with the 4th Amendment exclusionary rule which prevents admission of evidence found during an unreasonable search or seizure from being admitted, except where a defendant testifies to something that can be directly contradicted by raising the excluded evidence. The Court applied the same test that results in this rule (which balances the interests of preventing perjury against the deterrant effect the rule has against police misconduct) arriving at the same result: the evidence can be admitted for impeachment purposes. Justice Scalia notes that the deterrant effect is still present – since it would be easier to abide by the rules than gather inadmissable evidence of this sort in the hope that the defendant puts themself on the stand thus allowing impeachment evidence to be presented.

Accordingly the Kansas Supreme Court’s decision was reversed.

Justice Stevens (joined by Justice Ginsburg) dissented, arguing that allowing the State to benefit in any way from evidence gained in violation of a constitutional right weakens the deterrent effect of exclusionary rules and weakens the adversarial process at trial and the essential fairness it creates. Justice Stevens was also in dissent in the 1990 case of Michigan v. Harvey which allowed the admission of this kind of evidence under different circumstances. In that case he was joined by three other Justices rather than only one.