Archive for the ‘Criminal Law’ 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. Trussell

August 26, 2009

August 21. The Kansas Supreme Court has issued its opinion in State v. Trussell (No. 99,411) a murder-conspiracy case that reads like something from a TV show. In a unanimous decision, written by Justice Lee Johnson, the Court affirmed Jerry Trussell’s convictions arising out of the 1997 murder of his friend and host “Punkie” Harrod.

Jerry Trussell and his wife Tammy became friends with the Harrods (Punkie and Kelly) in the 1990s. At one point Tammy left Punkie, claiming he was abusive, though a court awarded him temporary custody of their kids. She later moved back in with him after discovering she was pregnant and the divorce was abandoned. In 1997, after some conversations between the women, Kelly started having sex with Jerry in return for his agreeing to “get rid of” her husband. Later, Jerry and Tammy were evicted from their home and moved in with the Harrods. In 1997 the Jerry, Kelly and Tammy organized a scene in which Punkie and Jerry fought and Kelly shot him in the head. His body was buried in a shallow grave.

Suspicions were aroused and police interviewed the protagonists several times without success. In 2001, Tammy began telling the police different versions of the story and in 2004 she led police to the location of the grave though no body was recovered. In 2005 Jerry Trussell was tried for 1st degree murder and conspiracy but the jury failed to reach a verdict. At a subsequent trial in 2007, Jerry was convicted. Between the first trial and the second trial the District Court reversed itself over whether to admit some un-Mirandized statements given by Jerry to police in 2001, resulting in the admission of the statements.

On appeal Trussell raised several issues, which the Court dismissed quickly.

Trussell argued that the State had not presented sufficient evidence that he had intent to have Punkie killed, but the Court rejected this noting that intent can be formed quickly and the evidence before the jury was that Trussell had had ample time to form intent since the killing was planned ahead of time.

Trussell argued that a self-defense instruction should have been given to the jury even though he had not asked for one, and indeed his theory of defense had been that he was being set up as the fall guy by Tammy and Kelly. The Court held that District Courts have no obligation to proactively instruct on every possible theory of defense, especially ones which might conflict with the defendant’s own theory.

Trussell argued that his 2001 statements ought to have remained suppressed. The Kansas Supreme Court disagreed and upheld the District Court’s reasoning on the matter. Since the statements were given voluntarily and Trussell was able to leave of his own volition at any point, the Court held that this was a non-custodial interrogation and that therefore Miranda did not apply.

Trussell objected that the Prosecutor had often used leading questions and that the District Court allowed this. In fact whenever the Defense objected to the leading questions the Court had them rephrased or dropped. However, the transcript indicated that there were unobjected-to leading questions also. The Court held that it had no jurisdiction to rule on these since the Defense had not objected at trial. The Court indicated that Prosecutorial Misconduct might have been a better argument for Trussell to have made, but he hadn’t so the matter was not considered.

Trussell objected to the Trial Court’s decision to rule one witness as a hostile witness (thus able to be asked leading questions). The Kansas Supreme Court held that the Trial Court was in the right position to make that call and that the transcript showed it had considered the matter before making its ruling and therefore upheld it.

Trussell’s life sentence (without parole for 25 years) for murder and subsequent 12 year sentence for conspiracy was affirmed.

Decision: State v. Case

August 20, 2009

August 7th. The Kansas Supreme Court has issued its decision in State v. Case (No. 98,077) a sex-offender sentencing appeal. In a unanimous opinion, written by Justice Lawton Nuss, the Court vacated Christopher Case’s sentence for aggravated endangering of a child, finding that under the conditions of his guilty plea certain facts relied upon by the Judge to sentence him to 60 months of postrelease supervision violated his rights under Apprendi v. New Jersey.

Christopher Case, a registered sex-offender, caused a nine-year old girl to be placed in a a situation where here life and health were endangered and where she was lewdly touched. Case also exposed himself to the victim. The details of the crime are not included in the opinion. Case pled guilty to charges related to this in return for more serious charges being dismissed, but utilised an Alford plea. An Alford plea (based on the United States Supreme Court’s 1970 decision in North Carolina v. Alford) is one where a defendant pleads guilty but maintains his innocence.

At sentencing Case was sentenced to the term which he and the prosecutor both agreed to recommend in the plea agreement, however the Judge imposed the maximum sentence of 60 months supervision post-release. The Judge did so on the grounds that the facts in the plea agreement showed the crime was sexually motivated, which allowed for this enhancement. The Court of Appeals agreed, and affirmed the District Court, noting language in the plea agreement talking about stipulating to the facts outlined in the charge, namely that Case had committed the crime to satisfy his sexual desires.

The Kansas Supreme Court vacated the sentence. It found that under an Alford plea (which despite the language about stipulating to the offenses contained in the charge this remained) the defendant has expressly not pled guilty to the facts as alleged. Therefore, the defendant could not have waived his Apprendi right not to have a judge take into account untried facts in enhancing a sentence. Since no jury made the fact-finding that the crime was sexually motivated, Case is not eligible for the enhanced sentence. Case’s case, will be returned to District Court for resentencing.

Decision: State v. Easterling

August 17, 2009

August 7th. The Kansas Supreme Court has issued its opinion in State v. Easterling (No. 100,454) a Jessica’s Law Sentencing Appeal. In a unanimous opinion, written by Justice Lee Johnson, the Court upheld David Easterling’s sentence to life without parole for 25 years, for the molestation of his granddaughter.

David Easterling sexually abused his 5 year old granddaughter. He was reported and arrested. During his interrogation (after waiving his Miranda rights), he admitted to having abused his daughter in the same way in the 1980s. His wife admitted that she had known about this. Easterling pled guilty to his crimes, in a plea arrangement under which the Shawnee County prosecutors agreed to request a departure sentence of just under 10 years instead of the presumptive Jessica’s Law sentence. The District Court noted the information about the 1980s abuse was contained in a sworn affidavit by a the interrogating police officer. The District Court refused the durational departure, sentencing Easterling to life without parole for 25 years.

Easterling appealed on two grounds. His first argument was that the inclusion of the evidence on the affidavit breached his Due Process rights to a fair trial. His second was that the Jessica’s Law sentence was a cruel and unusual punishment.

On the first argument the Court examined prior cases and determined that there was a Due Process question to be examined, making this the first Kansas case which explicitly states that Due Process must be afforded at sentencing. The Court found that, since the affidavit was signed under penalty of perjury, by a law enforcement officer and involved admissions by Easterling and his wife that a reasonable person would not make falsely, the evidence was considered to be reliable. It concluded that he had not been denied Due Process since the Court had notified him and his Counsel that it would be looking at the affidavit and he therefore in his argument for mitigation had had an opportunity to argue against it. Therefore the District Court did not deny Easterling his Due Process rights at trial.

On the challenge to the constitutionality of the Jessica’s Law sentencing regime, the Court found that since Easterling had not objected at trial on these grounds he could not raise the matter on appeal. It did consider whether the case’s procedural posture meant that it could consider the matter anyway, but decided otherwise.

Easterling’s sentence to life in prison without the possibility of parole for 25 years was therefore upheld.

Decision: State v. Morningstar

August 16, 2009

August 14th. The Kansas Supreme Court has issued its decision in State v. Morningstar (No. 99,788) an appeal arising from a child abuse prosecution. In a unanimous opinion, written by Justice Dan Biles, the Court upheld the conviction of Gary Morningstar for the rape of his six-month old daughter but vacated his Jessica’s Law sentence, in accordance with the recent precedent in State v. Bello.

The background to this case is revolting and covered in the Court’s opinion which is linked here and for this reason we see no reason to repeat it in this entry. Suffice to say that the abuse Morningstar inflicted on his daughter resulted in her hospitalization and was described by a nurse who had been involved in 188 previous sex abuse cases, as the worst trauma to a child she had ever seen.

Morningstar raised three issues. The first two concerned the State’s not having presented evidence to the jury that Morningstar was over 18 which the Court has held is a required element of the automatic life without parole for 25 years sentence under Jessica’s Law. Morningstar argued that because of this his conviction should be vacated. The Court rejected this argument, holding that the lack of evidence presented concerning his age did not mean that the crime had not happened, merely that a different sentencing regime must take effect. Therefore, Morningstar succeeded on his second point, that the Jessica’s Law sentence be vacated and he be remanded for resentencing under the Sentencing Guidelines.

Morningstar’s final argument was that the prosecutor engaged in misconduct with comments he made to the Jury about how Morningstar had left the baby lying in the bath after she had sustained her injuries while he made a telephone call to his wife. The Court rejected this argument finding that the prosecutor’s comments were acceptable and that even if they had not been they would still not have risen to the level of misconduct since they were supported by substantial evidence and therefore did not prejudice his defense.

Morningstar’s original sentence was vacated and the case remanded for resentencing. He will therefore receive a more lenient sentence under the Kansas Sentencing Guidelines.

Decision: State v. Raiburn

August 14, 2009

July 24th. The Kansas Supreme Court has issued its decision in State v. Raiburn (No. 95,908), concerning the Common Law concept of fugitive disentitlement. In a unanimous opinion, written by Justice Eric Rosen, the Court held that an appellate court can dismiss an appeal by someone who absconds while it is pending. In this particular case, the matter was remanded for a hearing in District Court to confirm that the appellant was in fact a fugitive.

Steven Raiburn was convicted of possession of marijuana and sentenced to a suspended sentence of 20 months in gaol and 18 months probation. He filed an appeal within the statutory time limits. Then he did not report for probation. The State moved to have his probation revoked.

When his appeal came up to be heard, the State moved to have it dismissed under the Common Law fugitive disentitlement doctrine which means that someone who flees during their appeal will have it dismissed regardless of the merits of their claim. The Court of Appeals agreed and dismissed the appeal. Raiburn appealed to the Kansas Supreme Court.

In a short opinion the Kansas Supreme Court reviewed Kansas, Federal and other State precedent on the matter of this doctrine. It concluded that the doctrine, though it crops up rarely, is still operative. Therefore the Court of Appeals does have the power to dismiss a case for this reason. The basic rationale for it is that the fugitive has removed himself from the Appellate Court’s jurisdiction: if he loses, he presumably will not turn himself in. If he wins, he may well not show up for a new trial.

However, in this case the Court found that nowhere had Raiburn been found to actually be a fugitive. The State had asserted it, Raiburn had not been present at the Court of Appeals and his advocate would not comment on his whereabouts but as a matter of law he had not been held to have breached his probation. Therefore the Court ruled that in such cases if the Appellate Court finds that it could apply the fugitive disentitlement doctrine it must remand the case to District Court for a finding, based on the preponderance of the evidence, as to whether the appellant is fugitive. It also held that an Appellate Court can choose not to dismiss an appeal under this doctrine in the same way as it may opt not to apply other general rules.

The case was therefore remanded to the Court of Appeals, to remand it to the District Court for a finding of fact as to whether Raiburn is a fugitive.

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.

Decision: State v. Richmond

August 10, 2009

July 24th. The Kansas Supreme Court has issued its decision in State v. Richmond (No. 100,074) a criminal appeal. In a unanimous opinion by Justice Lawton Nuss, the Court rejected Albert Richmond’s various claims to have his conviction for first-degree murder and 50 year (without parole) sentence vacated. Note: District Judge David King served on the Court for this case following the retirement of former Chief Justice Kay McFarland.

Albert Richmond, a drug dealer in Pittsburg, shot and killed Tyrone Owens (also a drug dealer in Pittsburg) in October 2006. The State believed that Richmond did so to discourage snitching, following an incident where a house he was in was raided for drugs. Richmond was accompanied by various henchmen who assisted in various parts of the crime, all of whom cut plea deals with the State. A jury convicted Richmond and he was sentenced to a life sentence without the possibility of parole for fifty years.

Richmond made several claims in his appeal:

That the Court erred by allowing a statement by Richmond to a police officer from several years before that in his own words he “robbed and killed people” into evidence. Rejected. The Court held that this statement (which stemmed from a 1995 Kansas City murder investigation) spoke to Richmond’s mental state and self-image and consequently could be admitted. Prosecutors had been warned to approach this very carefully, since Richmond’s prior convictions from that case were inadmissible.

That the Court erred by ruling that the State could introduce evidence about the 1995 convictions if Richmond introduced his own testimony which related to it. [Richmond chose not to testify]. Rejected. Richmond argued that by ruling this way he was prevented from introducing his own theory of defense but the Court held that having successfully blocked the 1995 matter from being referred to, Richmond could not have referred to those events without the State being able to fill in its side of the story.

That the Court erred by allowing into evidence proof of Richmond’s heavy involvement in drug culture, including prior convictions for drug related crimes. Rejected. The Court held that the evidence was probative and not unduly prejudicial since it showed that Richmond would have been aware of how much cash a dealer like his victim was likely to carry.

That the Prosecutor committed misconduct. Rejected. Richmond raised many claims of prosecutorial misconduct, all but one of which were rejected out of hand. The one which was not concerned the prosecutor repeatedly asking leading questions of a witness, after objections and being warned by the Judge about each instance. The Court held that this could have been reviewed for prosecutorial misconduct, but did not do so because it held that even if it found misconduct the error was harmless since there was little if any likelihood of these incidents altering the result of the trial.

That Cumulative Errors denied him a fair trial. Rejected, since a sole harmless error cannot lead to cumulative error.

Apprendi. Rejected. Richmond made a doomed, pro-forma Apprendi challenge [presumably to preserve the issue for a futile Federal review] which the Court rejected based on its past jurisprudence, upholding the Kansas Sentencing Guidelines.

Richmond therefore remains in prison.