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: McAlister v. Fairway

August 11, 2009

July 24th. The Kansas Supreme Court has issued its decision in the case of McAlister v. City of Fairway (No.s 99,808 and 99,809 consolidated). In a unanimous opinion, written by Justice Dan Biles, the Court squashed an attempt to hold a vote on a citizen’s initiative restricting some of that City’s eminent domain powers. The Court also clarified its jurisprudence on what was permitted in an initiative.

The City of Fairway considered moving its City Hall to a location which contained some historic sites as well as adjoining residential property. This move was unpopular and a petition drive was held leading to two questions being submitted for the ballot. These question would have put to a vote rules forbidding:

1. The move of the City Hall to a number of stated locations, or residentially zoned properties as of January 2005.

2. The rezoning of specific sites and residentially zoned properties as of January 2005, into commercial zoning.

The City Clerk decided that the proposed petitions were invalid as they intruded into the City’s executive functions and did not put them up for a vote. The petitioners filed a lawsuit and the district court ruled summarily for the City. This appeal was then filed.

In making its ruling the Court reformulated its past rulings on how to determine whether a proposed petition impacting on a city was legislative (allowed) or executive (not allowed) in function. Previous cases did not quite synch up on this question and the court drew them together to create a new test. The new test may plainly be stated as asking a series of questions:

1. Whether the petition would create a new law or policy
2. Whether the petition declares and acts towards a public purpose
3. Whether the petition intrudes into areas of government requiring specialized training and expertise
4. Whether the petition addresses issues of statewide concern which the State has delegated to the City

In addition, the results of these four questions are to be viewed in the context of the petition subject matter and in the context of Kansas’ established policy on referenda that they only be permitted where they are legislative and not administrative or executive. On this latter point the Court observed that this is a long-standing tradition in Kansas law, on which other states differ and allow more latitude in petitions. The Court also stated that no rigid weighting of the four questions in the test will be used, rather they will be looked at in the context of the individual case.

The Court then examined the two petitions. It found that the first petition was legislative in character in all but one of the questions. It found it executive/administrative in that in itemizing specific sites as off-limits for the siting of City Hall it intruded into areas of government requiring specialized training. As a result of this it ruled that the petition was invalid. In making that decision the fact that the elimination of the use of eminent domain on Residential Properties would rule 80% of Fairway off-limits was a factor. Thus a similarly worded petition in a more diversely zoned city might pass muster.

The second petition was ruled administrative/executive in all its parts, save that its public purpose test was  a mixture and did not lean either way. As such it was ruled invalid.

The Court therefore upheld the summary judgement that the petitions did not need to be presented to the voters. This is an important ruling since it recrafts the landscape for lower courts dealing with petition drives in the context of city politics. On the plus side, it plainly states the test to be employed. On the negative side, critics will note that the test provides the opportunity for opponents of given petitions to use the broad exclusion of matters requiring ‘specialized training’ to get those petitions blocked.

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.

Decision: In re C.P.W.

August 10, 2009

July 24th. The Kansas Supreme Court has issued its opinion in the case of In re C.P.W. (No. 101,017) a State appeal against an interpretation of law arising from a juvenile prosecution for a sex-offender’s failure to register at their Sheriff’s office. In a unanimous opinion, written by Justice Marla Luckert, the Kansas Supreme Court held that contrary to a ruling in District Court failing to register is not a crime of specific intent, and therefore the State only needs to prove that the defendant intended to break the law in such cases. Note: The District Court in this case acquitted C.P.W., and therefore though the State appealed the ruling for the purposes of precedent the Supreme Court’s decision does not affect them at this time.

C.P.W. failed to attend the local Sheriff’s office for registration after his birthday as required by the Kansas Offender Registration Act (KORA). At the time, sex-offenders like C.P.W. (who had been convicted of aggravated indecent solicitation of a child under age 14), had to register twice annually to have their information updated. The law now requires a thrice annual registration. However, at the time of the offense in question the law had only just changed to require the registration at a County Sheriff’s office rather than through the KBI in writing. C.P.W. did not attend. The District Court found that this crime was a specific intent crime and acquitted C.P.W. The State appealed to ask the Kansas Supreme Court to rule that this was not a correct interpretation of the law since the issue might arise again and a ruling from the Supreme Court would be a definitive precedent.

The Kansas Supreme Court agreed to take the case and ruled for the State. Henceforth, this crime should not be seen as one requiring specific intent. To understand what this means, one must review the levels of intent. In Kansas Law there are three levels of intent relevant to criminal activity:

Strict liability
– the conduct is prohibited even if the participant had no intent to break the law. The State made an attempt to suggest that this crime is one of Strict Liability, but the Court rejected that.

General intent – the accused need only be shown to have formed an intent to do something that was prohibited by law. There is no burden on the State to prove a further specific element of intent.

Specific intent – the accused must be shown to have intended to break the law and intended to do something specific that was illegal.

The District Court had ruled for the third of these. The Kansas Supreme Court held for the second – general intent.

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.