Archive for the ‘Processes at trial’ Category

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the remaining parts of the test for ineffective assistance of counsel, and a determination whether White’s plea may be withdrawn.

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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. Phillips

June 26, 2009

June 19th. The Kansas Supreme Court has issued its decision in the consolidated cases of State v. Phillips (No. 96,754) and State v. Wenzel (No. 97,548). In a unanimous opinion, written by Justice Marla Luckert, the Court held that Court Docketing Fees and Bureau of Indigent Services (BIDS) costs which can be assessed against criminal defendents in the event of a guilty verdict, do not form part of the judgement and therefore do not have to be read in open court.

The cases concerned Robert Phillips and Alan Wenzel who were convicted and had these costs imposed against them, but without the judge referring to them at sentencing. Both men appealed to the Court of Appeals and the Court of Appeals (separately) ruled that the fees were not punitive and therefore not covered by the requirement that a judgement is void if it is not pronounced in the presence of the defendant. The BIDS fee is assessed based on the ability of the defendant to pay as determined at the time the defendant applies for a public defender. In Wenzel’s case the Court record did not reflect whether the judge at that time had made a determination whether to waive the fee or not. Therefore that part of that case was remanded to the District Court for fact-finding.

The Kansas Supreme Court upheld both Court of Appeals decisions, arriving at the same result. In addition it noted that this distinction of fees from punitive measures is also supported by a Statute which explicitly allows the Court to issue notice of them to defendants via a statement. However, the Court did urge Judges to announce these fees along with sentences anyway.

Decision: State v. Dixon

June 25, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Dixon (No. 97,020). In a unanimous opinion, written by Justice Carol Beier, the Court affirmed Wallace Dixon’s felony murder conviction for the deaths of Dana Hudson and her 19-month old son Gabriel in a fire caused by Dixon’s ransacking of an Emporia apartment. Note: Justices Davis (now Chief Justice), Luckert and Nuss did not take part in the case. Their places were taken by Judges Richard Greene, Stephen Hill and Steve Leben.

In 2001, after quarelling with Dixon, Dixon’s girlfriend moved into an apartment. Dixon later (on a day he knew the apartment to be empty) broke in and removed several items of property. He later returned (both times with accomplices) and vandalized the apartment, in the process knocking a gas stove. Subsequently there was an explosion in the building and Dana and Gabriel Hudson who lived in another apartment were killed by fire and smoke inhalation since they could not escape. Dixon was convicted. The Kansas Supreme Court in a 6-1 decision vacated the conviction due to errors at the trial and Dixon was tried again. Again he was convicted, and brought this appeal against his convictions.

Dixon made many arguments, all of which were rejected by the Court, specifically:

  • Dixon wanted a mistrial because a prosecution expert witness changed his testimony since the first trial and the defense was not informed – Rejected, as the changes in testimony were to the details and did not alter the position of the ATF which was that the stove was damaged in the robbery and that this caused the fire.
  • Dixon wanted a mistrial because a juror saw Dixon in shackles in the hallway – Rejected, as he was not in Court in visible shackles (which the United States Supreme Court has held violates Due Process) and the trial judge cautioned the jury against inferring anything from the incident.
  • Dixon wanted instructions on lesser included offenses of manslaughter – Rejected because Kansas Law has different rules for lesser included offenses of Felony Murder and these instructions cannot just be requested by the defense.
  • Dixon argued that the judge should have instructed the jury that they all had to agree upon which predicate felony he had committed in order to support the Felony Murder conviction – Rejected, as this was not required in an alternative means case. The jury needed only to unanimously find that a particular felony was committed leading to the murder conviction, rather they each had to find that he had committed a felony, thus making the deaths felony murder.
  • Dixon argued that the jury instructions misstated the law – Rejected, as they did not.
  • Dixon argued that evidence that his mother had sought to pay off victims of the burglary in order for them not to go to the police should not have been admitted – Rejected as this evidence was well within the discretion of the Trial Judge to allow as probative and that it was not *unduly* (emphasis in the original opinion) prejudicial.
  • Cumulative error – Rejected, as there were no errors, so there was no cumulative error.

Dixon’s convictions for two counts of Felony Murder were therefore affirmed.

Decision: State v. Valladarez

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Valladarez (No 99,724). In a unanimous decision, written by Justice Marla Luckert, the Court held that a District Magistrate Judge can perform a felony arraignment, including informing the defendant of the implications of a guilty plea, provided that Magistrates in that District have been assigned this power by the Chief Judge of the District. In this case, there being no evidence either way about this assignment the case was remanded to the District Court to ascertain if the assignment of this authority had been properly made.

In 2007 Aaron Valladarez was charged in Ford County with sale of methamphetamine and possession of methamphetamine. At a preliminary hearing before a District Magistrate Judge the State offered a deal: plead guilty or nolo contendere to the charges and the sale of meth one would be replaced with a second possession charge (possession being a lesser felony). Valladarez accepted the deal and the Magistrate converted the hearing into an arraignment. Valladarez pled no contest and subsequently at a District Court sentencing hearing was given two concurrent 28 month sentences.

Valladarez appealed citing two conflicting aspects of Kansas Law governing Magistrates and arraignments, as well as longstanding precedents from the 1970s and earlier. The old cases and a general statute block Magistrates from presiding over most felony arraignments. However, another statute gives them the right to do so if the Chief Judge of the Judicial District has authorized them to. Generally, when two statutes conflict the more specific one is controlling, but the Court is to read them in such a way as to harmonize them. In this case, what happened was that in the 1990s the Legislature amended the law to allow Magistrates to handle arraignments for efficiency reasons. Therefore the Court rejected the notion that the Magistrate was not permitted to arraign Valladarez.

As a second argument, Valladarez also argued that even if the Magistrates could preside over an arraignment, they could not have been granted the authority to preside over the process of accepting a guilty (or no contest) plea since this requires a judgement as to whether the plea was acceptable. Valladarez argued that this was the realm of the District Judge. The Court also rejected this argument, noting that while the law did not specify one way or the other, the process of arraignment contained the process of accepting a plea and to allow a delay between the defendant entering a plea and the Court acting upon whether that plea was a valid one would actually harm the defendant’s Due Process rights.

Procedurally this case is somewhat odd. Generally appellate claims may only be raised if the matter they cover was raised in District Court, however if the claim concerns the jurisdiction of the Court that heard the case the claim can be raised at any point. (This is based on the idea that jurisdiction is an absolute – either it exists or it does not and there is nothing a party to a case can do to create or destroy it). For this reason the Kansas Supreme Court heard this case. However, the Statute which the Court relied on to reject Valladarez’ claims required some form of official decision within the Judicial District that would enable Magistrates to handle arraignments. There was no evidence in the case record that this had happened, so the case was remanded back to the District Court to determine whether this had in fact been done. The District Court was instructed that if it had been done then Valladarez’ felony convictions will stand, but that if it had not been done they will not. The opinion also made a point to put Chief Judges on notice to ensure that if this procedure was in use in their District to ensure that their administrative orders properly covered this process.

The Court also heard a claim from Valladarez that since the sentencing Judge had omitted to ask him a question about whether he had any reason to believe that he could not be sentenced, his sentence was invalid. The Court found that this check is required by law, and that the Judge had erred in not asking it. However the Court also found that the error was harmless: Valladarez would have received the same sentence anyway.

Decision: State v. Martinez

April 7, 2009

March 27th. The Kansas Supreme Court has issued its opinion in the case of State v. Martinez (No. 99,641), an appeal of a murder conviction from Wyandotte County. In a unanimous opinion, written by Justice Rosen, the court upheld Gabriel Martinez’s murder conviction for the drive-by shooting death of Jose David Contreras in 2006. Martinez is serving a life sentence without the possibility of parole for 50 years.

The Contreras family had been attending a dance in Kansas City, Kansas when they spotted a group of men, including Martinez, who Anthony Contreras had had trouble. After this, the Contreras family, including two brothers, Jose David and Nasser, left in their SUV. Martinez’ group of men followed and were spotted retrieving something from the trunk of their car. A few blocks away, when the SUV was parked in a McDonalds, the car Martinez was in opened fire, injuring Nasser and killing Jose David. Police later apprehended Martinez who confessed to having fired shots at the SUV from a 9mm which he had disposed of by tossing it over a bridge.

During the trial, concerns were expressed to the judge by one of the jurors that a second juror was acting oddly. The first juror was worried that the second juror was not mentally capable of being on the jury. The judge discussed the issue with her, and then ordered the jury to continue deliberations. The next day the judge met with the first juror, the presiding juror, Martinez and his counsel to further discuss the issue. Martinez moved for a mistrial, the judge held that the jury could continue to deliberate. Martinez was convicted of first-degree premeditated murder.

Martinez’ appeal focussed on the issue of the juror who concerns were raised over. He argued that he had been denied his right to a fair trial by the presence of an unsuitable juror who would not try the matter fairly. The Kansas Supreme Court rejected his arguments, holding that the trial judge did the right thing in leaving the juror in place. The concerns raised by the two other jurors never reached the point of showing that the juror was actually incompetent to try the case. Furthermore, the concernsĀ  addressed the way in which he was deliberating – matters which may not be questioned. As the court puts it:

“A verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views, the factors used in determining those conclusions, or what influenced those views or mental processes in reaching the juror’s conclusions.”

The Kansas Supreme Court did howeved find that the trial judge erred in his first communication with the juror who brought the matter to light. Since this conversation took place without the presence of Martinez it violated Martinez’ right to be present throughout the trial. However, based on the strength of the case and fact that there was not anything to the conversation which Martinez’ presence would have affected, the court held that this was a harmless error.

After dispensing with the now obligatory Apprendi sentencing claim, the Court rejected two other arguments from Martinez. Martinez argued that the wording of one of the jury instructions shifted the burden of proof to him. Since he had not objected to the instruction at trial, the Court would have needed to determine the instruction to be clearly erroneous in order to find for him. It did not. Martinez also argued that instructions for a lesser-included offense of second-degree reckless murder should have been given to the jury. Again Martinez had not objected at the time and therefore to find for him the Court would have had to find that there was a real possibility that the jury would have found him guilty of the lesser offense not the greater one. Since the evidence against him was strong, he had confessed and the jury had convicted him of first degree murder (while having the option instead of felony murder) this was certainly not the case.

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. Woodward

March 6, 2009

March 6th. The Kansas Supreme Court issued one opinion today: State v. Woodward (No. 99,280), a second collateral attack on David Woodward’s 1991 conviction for the rape of two children and murder of one. In a unanimous decision, authored by Justice Johnson, the court rejected Woodward’s argument that the prosecutor broke the terms of his plea bargain by forcefully articulating the gravity of his crimes at the sentencing hearing.

David L. Woodward molested a five year old and an eight year old. He killed the five year old. After his arrest a plea bargain was arranged whereby Woodward would plead guilty to various charges of rape, molestation and murder and the State would seek a sentence of life imprisonment, followed by ten years imprisonment [the ten years presumably being tacked on at the point of parole eligibility on the life sentence]. At sentencing, his Defense Counsel presented various alleged mitigating factors, and then recommended that the Judge follow the terms of the plea bargain.

Among the ‘mitigating’ factors was a suggestion that Woodward’s psychiatric evaluation and diagnosis as a pedophile was flawed. Woodward’s wife also spoke on his behalf and stated that (contrary to his plea) he did not murder the child. Following this, the prosecutor spoke about the crimes Woodward committed and rebutted several of the points raised in mitigation. The sentencing judge rejected the plea agreement and sentenced Woodward to life, followed by thirty years imprisonment. In this case, Woodward argued that the prosecutor broke the terms of the plea agreement in her arguments at sentencing. In essence, his position was that by rebutting the defense counsel’s arguments and describing the crimes the prosecutor sought to persuade the Judge not to follow the plea agreement.

The Kansas Supreme Court rejected Woodward’s argument. Noting that the sentencing Judge would have been able to hand down a lower sentence than the plea agreement had he so chosen, the Court holds that there was nothing in the prosecutors’ actions which indicates that she did not uphold her part of the bargain and argue in support of the sentence in the plea agreement. In this situation, her rebuttal of the mitigating evidence was an act to support the original plea agreement.

The Court also rejected a further argument of Woodwards’ that he be able to make an out of time appeal under a statute governing admissability of certain evidence, because he only recently discovered the existence of the statute. While the Court rejected this argument on the old maxim that ignorance of the law is no excuse, it also devoted a couple of paragraphs to explaining other flaws in the legal theory Woodward was attempting to make with this part of his appeal.

Decision: Harsch v. Miller

February 13, 2009

February 13th. The Kansas Supreme Court has issued its opinion in Harsch v. Miller (No. 100,149) a procedural appeal arising out of an eminent domain proceeding. In a unanimous opinion, written by Justice Nuss, the Court affirmed a Coffey County District Court ruling, dismissing Doyle Harsch’s appeal against theĀ  appraiser’s valuation of his land on the grounds that Harsch and his attorney did not appear on the date set for the civil trial. A ruling of the District Court sanctioning Harsch’s attorney and imposing costs upon him based on a finding of contempt of court in the case was overturned. Note: The “Miller” of the case title is Debra Miller, Kansas Secretary of Transportation. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Stephen Hill of the Court of Appeals.

In 2007, KDOT instituted eminent domain proceedings to acquire part of Doyle and Lea Harsch’s land. The Harsches began several legal proceedings to fight this. They appealed the appraiser’s valuation to District Court, began a constitutional claim in District Court and filed another constitutional claim in Federal District Court. They withdrew the State constitutional case. In the midst of this, they filed a motion with the District Court hearing their valuation appeal to stay the case, pending the outcome of their constitutional appeals. The District Court denied their motion. As the date of the jury trial on their appraisal appeal approached the Harsches filed an appeal of the denial of stay with the Court of Appeals. While the Court of Appeals asked them to show why the appeal should not be dismissed as interlocutory (i.e. filed before the lower Court had concluded the case, something there are specific procedures to follow if desired and which is rarely granted), it set a date on which it would rule on their appeal after the date on which the jury trial was to take place.

The District Court proceeded towards the jury trial, while the Harsches and their attorney argued that it could not do this while the Court of Appeals was considering their appeal of the denial of stay. The District Court ruled that it retained jurisdiction in the case, and the Harsches and their attorney announced they would not attend the trial since they argued that the District Court did not and the trial would therefore be a nullity. They carried out their threat, and on the day of the trial the District Court dismissed their appeal and confirmed the appraiser’s valuation. It also sanctioned their attorney, Mark Rockwell, for several thousand dollars in costs of the abandoned trial. A few days later the Court of Appeals dismissed the Harsch’s appeal of the denial of stay. Their Federal case is scheduled for trial in June of this year.

In their appeal the Harsches repeat their argument that the District Court lacked jurisdiction at the scheduled time of the jury trial to hear the case. Some background on rules of appeal in civil cases is necessary to the Supreme Court’s rejection of their argument. Appeals are governed by statute. In civil cases, such as this one, they may only be brought at the conclusion of a lower court proceeding, or as an interlocutory appeal through a particular procedural process. Interlocutory appeals are rarely granted and those that are not filed through the defined process are always dismissed. One exception to this rule is a narrow group of appeals under the collateral order doctrine, which allows interlocutory appeals of District Court rulings that have a degree of finality to them, cover significant legal issues and which would not be possible to preserve for the regular appeals process if the appellant waited. The Harsch’s argued that their appeal fell into this category. The Court rejected this argument, and emphasizing the Legislature’s goal that cases not be tried piecemeal and be concluded as speedily as possible noted several alternative approaches the Harsch’s had opted not to use (such as following the procedure for filing an interlocutory appeal in the prescribed manner). The Court found no grounds that the filing of the Harsch’s appeal of the denial of stay would have removed the District Court’s jurisdiction (in effect getting them the stay they had been denied by simply filing a motion in the higher court), and therefore found that the District Court acted within its discretion in proceeding with the jury trial.

The Kansas Supreme Court overturned the finding that the Harsches and their attorney were in contempt of court by not showing up for trial. It did so on a technicality. Under the Statute cited by the District Court in its contempt ruling, the Court journal is required to include a statement of why they were found in contempt, the sanctions applied and a description of the defendants reason or excuse for the behavior found in contempt. Despite Rockwell’s having made his jurisdictional argument to the District Court when he said the Harsches would not be attending the trial, this information was not included in the journal. Therefore the contempt citation is invalid and was vacated by the Supreme Court along with the fees Rockwell had been ordered to pay.

Decision: State v. Salts

February 10, 2009

February 6th. The Kansas Supreme Court has issued its opinion in State v. Salts (No. 99,533) an appeal against a child abuse conviction on the grounds of erroneous jury instructions. In a unanimous opinion, written by Justice Beier, the Court found an error in one of the standard pattern jury instructions, but found it was insufficient to reverse the late Alan Salts’ conviction for indecent liberties with a child. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

Alan Salts met a 15 year old (K.D.) at a gas station after K.D. had run away from home. He took her to his house where he was joined by another 15 year old girl (A.L.). Salts gave the girls alcohol, though A.L. drank little. K.D. ended up lying down on a bed upstairs where twice K.D. caught Salts in the process of touching her. After this A.L. called the police. Salts was convicted and sentenced to life imprisonment without the possibility of parole. Salts died soon after his appeal was filed, but in Kansas death will not prevent a timely direct appeal from proceeding since there is a public benefit from the resolution of the case.

Salts objected to the use of the phrase “Another trial would be a burden on both sides.” in the jury instructions which his lawyers encouraged the jury to reach a verdict. They also argued that this instruction conflicted with another instruction which told the jury not to be concerned about what happens after they have delivered their verdict. The State argued that this instruction (which comes from Jury Instruction Pattern PIK 3d 68.12) was there to ensure that jurors spend time diligently and fairly considering all sides in the case, and not simply hang at the earliest impasse. The State noted that the instruction also made it clear that the challenged language did not tell jurors that they had to give in to pressure and come to a decision. The Court for its part agrees with Salts and finds that this part of the instruction is erroneous. The Pattern Instruction Committee is instructed to amend this pattern to correct this problem.

The standard Salts lawyers would have to meet to secure a reversal of conviction would be that the jury instruction was clearly erroneous, which would mean that there was a real possibility that the jury would have reached a different verdict without it. Therefore, although the instruction contained an error the Court held that Salts conviction was safe as there was no reason to believe that he would not have been found guilty without this instruction. His conviction was therefore affirmed.