Public Defense

Right to refuse to consent to search

Posted on June 27, 2009
Here is an article on FourthAmendment.com reporting on a recent Nevada case holding that it is improper for a prosecutor to comment on the refusal to consent to a search, just like it is improper for a prosectuor to comment on the exercise of other constitutional rights...

Gant applied in Kansas

Posted on June 26, 2009
Don Lill and Monte Miller (representing co-defendants) won in State v. Henning, No. 98,118 (Kan. June 26, 2009) affirming Judge Wheeler's suppression based on an improper search incident to arrest. The briefing and argument largely discussed the recent amendment to K...

Exposure to communicable disease statute constitutional, but not proven

Posted on June 24, 2009
Lydia Krebs won her second KSC case of the day in State v. Richardson, No. 100,445 (Kan. June 19, 2009), reversing two Lyon County convictions for exposing another to a life-threatening disease. The KSC reviewed K.S.A. 21-3435, making it a crime "for an individual who knows oneself to be infected with a life threatening communicable disease knowingly: (1) to engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening disease...

Can't use juvenile adjudications for persistent sex offender classification

Posted on June 24, 2009
Lydia Krebs won in State v. Boyer, No. 98,763 (Kan. June 19, 2009), vacating an enhanced sentence in a Sedgwick County case under K.S.A. 21-4704(j) based on a prior juvenile adjudication. This was primarily a statutory construction case--the KSC had to decide whether a juvenile adjudication satisifies the part of K...

To access this complete feed in the blog feed reader login or register for free.

In limine violation and Doyle violation result in new trial [NOT FINAL]

Posted on June 24, 2009
Rick Kittel and KU Defender Project student Sebastien Orosco won in State v. Pruitt, No. 100,039 (Kan. App. June 19, 2009), winning a new trial in a Lyon County attempted burglary prosecution. There were two trial errors that were of concern to the COA: (1) a violation of an in limine order when an officer/witness answered a question implying prior bad acts and (2) a Doyle violation, which was implicitly conceded in the state's brief...

Due Process violation for probation violation delay [NOT FINAL]

Posted on June 23, 2009
Lydia Krebs won in State v. Curtis, No. 99,474 (Kan. App. June 19, 2009), reversing a Reno County probation violation finding. The defendant claimed a Due Process violation for a twenty-one month delay between filing of the motion revoke and the decision...

Overbroad non-exclusive possession instruction [NOT FINAL]

Posted on June 23, 2009
Merly Carver-Allmond won in State v. Douglas-Keough, No. 100,316 (Kan. App. June 19, 2009)(unpublished), obtaining a new trial in a Reno County drug prosecution. The district court gave a nonexclusive possession instruction based on P.I.K. Crim. 3d 67...

Acquittal in vehicular homicide case

Posted on June 11, 2009
Here is a Wichita Eagle article reporting that Steve Mank won an acquittal in State v. Pasteka, ending a Sedgwick County vehicular manslaughter prosecution.We sure are seeing an increase in these cases where accidents are prosecuted as crimes. Good to see a jury recognize that accidents tragically happen.

ICE hold doesn't vitiate statutory right to speedy trial [NOT FINAL]

Posted on June 09, 2009
Patrick H. Dunn won in State v. Montes-Mata, No. 98,883 (Kan. App. May 29, 2009), affirming Judge Wheeler's dismissal of Lyon County drug charges on statutory speedy trial grounds. The issue stemmed from a decision whether an immigration hold kept a person from being held solely by reason of the pending state charges:We conclude the immigration detainer issued to the Lyon County Sheriff's Department merely expressed ICE's intention to seek future custody of Montes-Mata and requested notice from Lyon County prior to terminating Montes-Mata's confinement...

Insufficient evidenc to support accident convictions [NOT FINAL]

Posted on June 09, 2009
Kevin P. Sheppard won in State v. Holm, No. 100, 943 (Kan. App. May 29, 2009), reversing a Shawnee County leaving the scene of an accident and failure to report an accident convictions. The COA construed K.S.A. 8-1602 to -1604:A reading of these statutes appears to require remaining at the scene of a noninjury accident only if the property damaged by the damaging driver is attended by another person...

Lesser verdict in Hutch murder case

Posted on June 08, 2009
Here is a Hutchinson News article reporting that PD Kelly Driscoll won a verdict of second-degree murder in State v. Williams, a Reno County first-degree murder prosecution. From the article, it sounds like state-of-mind was the big issue.

Lots of great appellate work by defenders

Posted on June 02, 2009
We try to track and publish good cases as they come out. Not surprisingly, we are somewhat focused on ADO cases (because we are from the ADO). We try to post on other cases when we know about them, so we pretty regularly post on other defenders' published and unpublished reversals, which we can track...

State must prove adult's inability to consent [NOT FINAL]

Posted on June 02, 2009
Matthew J. Edge won in State v. Wylie, No. 99,580 (Kan. App. May 22, 2009)(unpublished), reversing a Lyon County rape conviction. The state charged Mr. Wylie with alternative counts of rape by force and rape of a woman unable to give consent due to a mental disability...

Reversal for failure to give lessers [NOT FINAL]

Posted on June 02, 2009
Rick Kittel won in State v. Hawkins, No. 98,459 (Kan. App. May 22, 2009)(unpublished), getting a new trial in a Montgomery County felony theft and fleeing and eluding prosecution. The COA reversed and remanded on each count based on failure to give lesser-included offense instructions...

Not guilty on battery on a co

Posted on May 29, 2009
Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Hubbard, ending a Reno County battery on a correctional officer prosecution.

Captial murder charges dismissed

Posted on May 19, 2009
The State has dismissed capital murder charges against Jason Strand and Kendrick Shears, two Hutchison Correctional Facility inmates accused of the murder of fellow inmate David Warren. Tim Frieden and Jeff Wicks represented Mr. Shears, and John V. Wachtel and Roger L...

Can't use uncounseled misdemeanors for enhancement

Posted on May 08, 2009
Michelle Davis won in State v. Youngblood, No. 96,850 (Kan. May 8, 2009), reversing a Harvey County conviction for second-time possession of a hallucinogenic drug. The critical issue was whether the distrrict court could use a prior municipal conviction for enhancement purposes...

Attempted Jessica's Law is a grid offense

Posted on May 08, 2009
E. Jay Greeno won in State v. Horn, No. 100,373 (Kan. May 8, 2009), obtaining remand for new sentencing in a Butler County attempted criminal sodomy case. The KSC construed two different provisions noting that Jessica's Law purports to cover listed offenses and attempts to commit those listed offenses, but that the sentencing guidelines provides that attempt to commit an off-grid offense is a severity level 1 offense...

May 2009 KSC docket

Posted on May 04, 2009
Here are the criminal cases on the KSC docket for May 11-15, 2009. 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...

Second hung jury in Salina murder case

Posted on May 04, 2009
Here is the Salina Journal article reporting that, for the second time, a Saline County second-degree murder prosecution has ended in a hung-jury. The article indicates that the prosecutor will decide whether to try, try again. Nice job to Julie McKenna for her great work in the case.

In-laws connection insufficient for probable cause

Posted on May 04, 2009
The Tenth Circuit decided Poolaw v. Marcantel, No. 07-2254 (10th Cir. May 4, 2009), a 1983 case, where officers searched a suspect's in-law's property and stopped a suspect's sister-in law mostly because they were the suspects' in-laws. The Court held that familial relationship, by itself, is insufficient for probable cause:Adhering to established Supreme Court precedent and the unanimous case law of this and other courts, we hold that a familial relationship is insufficiently particularized to justify invading an individual?s reasonable expectation of privacy...

When all else fails, see if you can get the defense attorney to testify

Posted on May 01, 2009
Here is a Hutch News article reporting that Judge McCarville has found public defender Sarah Sweet-McKinnon in contempt for refusing to testify regarding confidential client communications in a Reno County murder prosecution. I thought it was sort of interesting that the prosecutor says that this "is a murder case, and the sole goal is to find the truth...

Acquittal in Reno County

Posted on April 29, 2009
Here is a Hutch News article reporting that Lee Timan won an acquittal in State v. Dirkson, ending a Reno County agg battery prosecution.

Acquittal in murder case

Posted on April 27, 2009
Here is a Hutch News article reporting that Phillip White (my old public defender colleague) won an acquittal in State v. Salas, ending a Sedgwick County first-degree murder prosecution. As the article relates, investigators never found a body.

Just because you might get to leave later doesn't mean you feel free to leave now

Posted on April 27, 2009
John Moon of Albequerque won in U.S. v. Fred, No. 08-2052 (10th Cir. April 20, 2009)(unpublished), obtaining suppression of statements under Miranda. The main question was whether Mr. Fred was in custody. The Tenth Circuit underwent a detailed analysis of the district court's findings, holding that some were supported and some were clearly erroneous...

Not guilty in arson case

Posted on April 24, 2009
Here is a Lawrence Journal-World article reporting that Charles Whitman won an acquittal in State v. Toussaint, ending a Douglas County arson prosecution.

Branded [NOT FINAL]

Posted on April 24, 2009
Carl Folsom won in State v. Schad, No. 99,445 (Kan. App. April 24, 2009) reversing several conditions of probation imposed in a Stafford County aggravated indecent solicitation case. As a condition of probation, the district court placed Mr. Schad on house arrest for the entirety of the sixty-month probation, with permission to leave only to meet with his probation officer, attend sex offender treatment, and to attend medical appointments...

Improper response to jury question prompts reversal [NOT FINAL]

Posted on April 23, 2009
Carl Folsom won in State v. Jones, No. 97,976 (Kan. App. April 17, 2009), obtaining a new trial in a Johnson County aggravated robbery prosecution. During deliberations, the jury asked "Were there identified fingerprints on the gun?" The district court responded that "no evidence was presented about fingerprints on the gun...

Robbery definitions [NOT FINAL]

Posted on April 23, 2009
Carl Folsom won in State v. Soule, No. 98,702 (Kan. App. April 17, 2009)(unpublished), getting a new trial in a Sedgwick County aggravated robbery prosecution. The COA held that sufficient evidence supported the aggravated robbery prosecution, but agreed that Mr...

Arizona v. Gant limits automobile searches incident to arrest

Posted on April 21, 2009
The US Supreme Court issued its opinion in Arizona v. Gant (07-542) on warrantless automobile searches incident to arrest. The Court held that, ?Belton does not authorize a vehicle search incident to a recent occupant?s arrest after the arrestee has been secured and cannot access the interior of the vehicle...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.