Public Defense

In Contempt?

Posted on March 24, 2010
On March 10, 2010, the KSC heard arguments in State of Kansas (Appellee) v. Valerie Gonzalez (Appellee) and Sarah Sweet McKinnon (Appellant), which we previously blogged about here. The appeal stems from a district court?s finding of contempt against Ms...

Happy St. Patrick's Day!

Posted on March 17, 2010
For all of you going out to various parades or other festivities today, I wanted to remind you of one of my favorite cases, State v. Anguiano, 37 Kan. App. 2d 202; 151 P.3d 857 (2007), blogged about here. In Anguiano, the COA held that an investigatory stop of a pedestrian was not supported by reasonable suspicion when the person only "semi-fit" the description of a person wanted on a felony warrant...

KSC to decide expungement issue

Posted on March 17, 2010
On March 3, 2010, the KSC transferred State v. Jaben, No. 102,383 up for court's consideration pursuant to K.S.A. 20-3018(c). Jaben's attorney, William Rork, informed me that the case involves a State's appeal on a question reserved. The issue is what law should apply in expungement cases - the law at the time of the offense or the law at the time of the expungement petition...

Prior bad acts and faulty limiting instruction [NOT FINAL]

Posted on March 17, 2010
Ryan Eddigner won in State v. Carpenter, No. 100,485 (Kan. App. March 12, 2010), obtaining a new trial in a Greenwood County manufacture prosecution. The COA held that, under Boggs (blogged about here), the district court improperly admitted evidence of prior drug convictions as it related to a possession charge...

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Petitions for Review granted March, 2010

Posted on March 15, 2010
On March 8, 2010, the KSC granted petitions for review in the following cases:State v. Deal, 41 Kan. App. 2d 866; 206 P.3d 529 (May 1, 2009)Issues presented:1. Sufficiency of the evidence on reckless second-degree murder conviction2. Whether the court erroneously instructed the jury that victim had ?no duty to retreat?3...

Court furloughs are here

Posted on March 12, 2010
On March 12, 2010, the KSC issued Administrative Order 241, which officially orders furloughs for the Kansas Judicial Branch. Specifically, the KSC stated: Kansas district and appellate courts will be closed on April 9, 16, 23, and May 7, 2010...

Answering jury question outside of presence of jury requires reversal [NOT FINAL]

Posted on March 04, 2010
Janine Cox won in State v. Bonnett, No. 98,719 (Kan. App. Feb. 26, 2010)(unpublished), obtaining a new trial in a Butler County rape prosecution. During deliberations, the jury sent out some questions:Initially, we not that our review of this argument is hindered by the state of the record...

Indiana has a state constitution

Posted on March 01, 2010
In State v. Peters, No. 05A02-0908-CR-735 (Ind. App. Feb. 23, 2010), the Indiana COA upheld a suppression order based on the Indiana Constitution, recognizing that the question is separate from a Fourth Amendment claim:First, the State has waived the issue of whether the officers? initial, warrantless search was constitutional because the State has failed to make any argument on the issue of the reasonableness of that search under Article I, Section 11 of the Indiana Constitution...

Must advise of right to jury trial before effective waiver [NOT FINAL]

Posted on March 01, 2010
Washburn student intern Christopher Mann and I won in State v. Frye, No. 101,292 (Kan. App. Feb. 26, 2010)(unpublished), reversing a Riley County aggravated battery conviction. A district court convicted Mr. Frye of a lesser level of aggravated battery after a bench trial...

Applying Youngblood [NOT FINAL]

Posted on March 01, 2010
Sarah Morrison and Heather Cessna won in State v. Long, No. 98,736 (Kan. App. Feb. 26, 2010), vacating a Finney County possession sentence and remanding for resentencing excluding some misdemeanor convictions in criminal history:On appeal, Long claimed the district court erred by overruling his objection to his criminal history...

Must instruct jurors on elements of predicate offense

Posted on February 19, 2010
Rick Kittel won in State v. Richardson, No. 98,572 (Kan. Feb. 19, 2010), obtaining a new trial in a Wyandotte County felony fleeing or attempting to elude prosecution. The district court gave a pattern elements instruction including "That the defendant committed five or more moving violations...

Must show waiver of right to counsel to use for enhancement

Posted on February 16, 2010
Matthew Edge won in State v. Hughes, No. 98,716 (Kan. Feb. 12, 2010), reversing a sentence in a Sedgwick County agg escape prosecution. The main issue was whether certain Dodge City municipal convictions should be included in criminal history. Mr. Hughes had signed a waiver form, but it did not include a certification by the judge, like one included in a sample waiver form previously included in a previous KSC case, that the defendant was "fully informed of the charges against him or her and of the accused's right to have counsel ...

Why can't jurors know the potential punishment?

Posted on February 15, 2010
CrimProf Blog has this coverage of an article titled: "Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction." I have recently been blogging and raising issues about the pattern instruction telling the jury not to consider disposition...

Allen instruction given before opening results in new trial [NOT FINAL]

Posted on February 12, 2010
Leslie Hess won in State v. Rivera, No. 100,848 (Kan. App. Jan. 29, 2010)(unpublished), obtaining a new trial in a Ford County DUI prosecution. The COA reversed based on instructions given before opening statements:Prior to opening statements the trial court issued a series of oral instructions, concluding, ?If you should fail to reach a decision the case is left open and undecided...

Acquittal in murder prosecution

Posted on February 12, 2010
Word on the street has it that my former PD colleagues Chrystal Krier and Nika Cummings of the Sedgwick County Conflicts PD office won an acquittal in State v. Ford ending a Sedgwick County first-degree murder/agg robbery prosecution

Former military guy shot by police acquitted of criminal threat

Posted on February 09, 2010
Here is a Wichita Eagle article reporting that Kurt Kerns won an acquittal in State v. Ware, ending a Sedgwick County criminal threat prosecution. According to the article, Mr. Ware was going to his car to get an assault rifle to break up a fight in a bar parking lot at the request of the bar owner...

Petitions for Review granted February 2010

Posted on February 08, 2010
On February 4, 2010, the KSC granted defendants' petitions for review in the following cases:State v. Bennington, No. 98,656 (Kan. App. April 10, 2009)(unpublished)Issues presented:Whether improper admission of deceased victim's testimony was harmless...

March 2010 KSC docket

Posted on February 01, 2010
Here are the criminal cases on the KSC docket for March 8-12, 2010. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

Alaska has a state constitution

Posted on January 29, 2010
Here is a link to a recent Alaska Supreme Court decision reversing a DUI conviction based on an improper seizure, in part, under the Alaska Constitution:The Fourth Amendment of the United States Constitution and article I, section 14 of the Alaska Constitution both prohibit "unreasonable searches and seizures...

Improper instruction on great bodily harm [NOT FINAL]

Posted on January 28, 2010
Ryan Eddinger and Meryl Carver-Allmon won in State v. Delacruz, No. 100,654 (Kan. App. Jan. 22, 2010), obtaining a new trial in a Seward County aggravated battery prosecution. There were two instructional errors that resulted in reversal. First, while the district court instructed the jury on misdemeanor battery as a lesser, it used the "rude, insulting or angry manner" version, instead of "bodily harm...

Homicide acquittal in Capital City

Posted on January 21, 2010
Here is a Topeka Capital-Journal article reporting that Richard Jones won an acquittal in State v. Solis-Munoz, ending a Shawnee County second-degree intentional murder prosecution (the jury convicted of reckless agg battery of a separate victim). This case was the subject of a state's appeal blogged about here.

New Hampshire has a state constitution

Posted on January 19, 2010
Here is a recent New Hampshire Supreme Court decision holding that failure to instruct a jury on an element of a crime is not subject to harmless error review. This is an issue that has come up in Kansas in State v. Daniels, where the KSC followed the United States Supreme Court's lead in Neder to find that the federal constituion allows application of the harmless error rule to such failure...

Brinklow acquitted on retrial

Posted on January 18, 2010
About a year ago, we reported (here) that Pat Dunn won a new trial in a Barber County aggravated indecent liberties case in State v. Brinklow. The KSC reversed and remanded due to failure to sequester witnesses and prosecutorial misconduct.We just learned that in September 2009, Michael C...

Exonerated man likely to receive millions in compensations

Posted on January 18, 2010
Here is a Hutchinson News article reporting that Eddie Lowry, who spent 10 years in prison for a rape he didn't commit, will receive $7.5 million in compensation if the civil defendants approve the recommended settlement. The article notes thatLowery's attorneys contend that officers who interrogated him denied his repeated requests for an attorney, provided him details of the rape and then coerced him into confessing to the crime...

Not guilty X 2

Posted on January 18, 2010
Congrats to Steve Cott, who won two big not guilty verdicts in as many weeks. First, he won an an acquittal after twelve minutes of jury deliberations, in State v. Solis, ending a Ford County agg criminal sodomy proseuction. Here is coverage in the Dodge City Globe (the paper says 15-20 minutes deliberations, but I heard 12)...

Happy Birthday to Kansas Defenders

Posted on January 18, 2010
Well, this blog turned four years old on Saturday, if you can believe that. Six hundred and seventy-three posts since January 16, 2006. And two followers! We rock!Any ideas for what should be included in the blog in the next four years?

More great appellate work by defenders

Posted on January 18, 2010
As previously noted (here), we try to update on most favorable appellate cases, but we often don't get notice of unpublished affirmances in state's appeals, because the ADO is usually not counsel of record.Here is a search of the last seven months of 2009, which turned up a lot of great trial/appellate work by defenders...

Acquittal in Hutch

Posted on January 15, 2010
Sarah Sweet-McKinnon won an acquittal in State v. Nauert, ending a Reno County aggravated assault conviction on Wednesday.

Sex Offender Laws & the Ex Post Facto Clause

Posted on January 15, 2010
During the last year, there have been numerous challenges around the country to the retroactive application of sex offender laws. I?ve listed a few of the notable cases below where courts have held that the retroactive application of these laws constituted unconstitutional ex post facto punishment...

Trooper acquitted in Emporia

Posted on January 14, 2010
Here is an Emporia Gazette article reporting that Tom Lemon won an acquittal in State v. Epperly, ending a Lyon County prosecution of a highway patrol trooper for three counts of theft and a count of official misconduct.

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