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|September 30, 2016, Appellate Court Digests|
Kansas Supreme Court – Criminal
Crimes and Punishment–Criminal Procedure–Jury Instructions–Prosecutors
FACTS: Carter convicted of premeditated first-degree murder. On appeal he raised multiple claims of misconduct during closing argument and rebuttal by prosecutor: encouraging jury to disregard district judge's admonition not to prejudge case by telling jury it already knew facts and what Carter had done; misstating law of premeditation; arguing Carter's lack of remorse circumstantially demonstrated the existence of premeditation; stating a codefendant had blamed Carter for the murder; adversely commenting on Carter's decision to testify and suggesting Carter was lying; arguing jury should disregard judge's ruling on a defense argument about jury members; and eliciting sympathy for victim's family. Carter next claimed district judge&'s comments to potential jurors before voire dire included improper statement that jury had "obligation" to find a defendant guilty if convinced beyond a reasonable doubt. Third, Carter complained the district judge failed to instruct jurors sua sponte on lesser included offenses of reckless second-degree murder and voluntary manslaughter. Fourth, he claimed the aiding and abetting instruction given should have included additional language that "mere association or presence is insufficient to establish guilty as an aider or abettor." Fifth, Carter claimed cumulative error denied him a fair trial.
ISSUES: (1) Prosecutorial misconduct, (2) preliminary statement on reasonable doubt, (3) lesser included offense instructions, (4) aiding and abetting instruction, (5) cumulative error
HELD: New framework set forth in State v. Sherman, 305 Kan. __ (2016), for reviewing claims of prosecutorial misconduct is not applied because Sherman was decided after Carter’s case was argued and submitted for decision, but outcome would be the same under the new framework. No merit to Carter’s allegations of prosecutor’s comments concerning prejudgment of case, law of premeditation, Carter’s lack of remorse, Carter’s credibility and choice to testify, encouragement to disregard district judge’s ruling, and invocation of juror sympathy for victim’s family. Prosecutor committed misconduct by arguing a fact not in evidence, i.e, that a codefendant had blamed Carter for fatally stabbing the victim. This statement was gross and flagrant because it violated a well established rule, but error was harmless where no evidence of ill will and overwhelming evidence against Carter.
STATUTE: K.S.A. 2015 Supp. 21-5109(b)(1), - 5403(a)(1), -5403(a)(2), -5403(b), 22-3414(3)
Kansas Supreme Court – Criminal
Crimes and punishment–prosecutors
FACTS: Netherland convicted of first-degree felony murder, attempted aggravated robbery, aggravated robbery, conspiracy to commit aggravated robbery, aggravated battery, and attempted burglary of a motor vehicle. Charges arose from the murder of attorney Gibson who was passenger in car in her home driveway, and the battery and robbery of the car’s driver. On appeal Netherland challenged the sufficiency of the evidence supporting his convictions. Netherland also claimed prosecutor’s closing argument wrongfully expressed his personal belief that Netherland authored jail mail evidence, and that Netherland was guilty of charged crimes.
ISSUES: (1) sufficiency of the evidence, (2) prosecutorial misconduct
HELD: Sufficiency of evidence claim on appeal is focused on crimes associated with Gibson’s murder. Sufficient evidence, including accomplice testimony describing Netherland’s involvement, supports the felony murder conviction. Totality of the evidence was legally sufficient to support Netherland’s remaining convictions. Challenge to evidence supporting attempted burglary conviction is abandoned by Netherland’s failure to address it on appeal.
STATUTES: K.S.A. 2011 Supp. 21-5301(a), -5302, -5402(a)(2), -5413(b)(1)(A), -5420(b), -5807(a)(3); K.S.A. 60-261
Kansas Supreme Court – Criminal
crimes and punishment–evidence–jury instructions–statutes
FACTS: Seba fired shots toward those with whom he had been fighting, injuring one of the men and killing a pregnant bystander. Using transferred intent doctrine and applying Alexa’s law, K.S.A. 2015 Supp. 21-4519(a)(2), State charged Seba with premeditated murder of both the bystander and her “unborn child.” On appeal, Seba argued the transferred intent doctrine does not apply, and that both counts can only be charged as first-degree felony murder, or alternatively, the doctrine could only apply to murder of the bystander and not to the Alexa’s law count. He also claimed district court: (a) failed to instruct jury on lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter; (b) incorrectly instructed jury on definition of “intentionally” in first-degree murder; (c) failed to instruct jury on lesser included offense of imperfect self-defense voluntary manslaughter; (d) and incorrectly instructed jury that voluntary intoxication is not a defense to voluntary manslaughter and attempted voluntary manslaughter. Seba further claimed district court erred by admitting gruesome autopsy photos, and claimed cumulative error denied him a fair trial.
ISSUES: (1) transferred intent doctrine, (2) jury instruction—reckless second-degree murder and reckless involuntary manslaughter, (3) jury instruction—defining “intentionally” , (4) jury instruction—imperfect self-defense voluntary manslaughter, (5) jury instruction—voluntary intoxication defense, (6) gruesome autopsy photographs, (7) cumulative error
HELD: Transferred intent doctrine does not offend, change, or conflict with Kansas first-degree murder statute, K.S.A. 2015 Supp. 21-5402. The doctrine merely clarifies that evidence of a defendant’s intent to kill a particular person can be sufficient to prove the mental state element of first-degree premeditated murder even if a person other than the intended victim is murdered at the defendant’s hands. Under facts in this case, district court properly instructed jury on transferred intent doctrine, and sufficient evidence supported Seba’s convictions for deaths of the pregnant unintended victim and her “unborn child.”
STATUTES: K.S.A. 2015 Supp. 21-5202(i), -5202(j), -5222, -5222(b), -5226(c), -5402, -5402(a), -5402(a)(1), -5403(a)(2), -5404(a), -5404(a)(1), -5404(a)(2), -5405(a)(1), -5419, -5419(a)(2), -5419(c), 22-3414(3), -3601(b)(3); K.S.A. 60-401(b)
Kansas Court of Appeals – Criminal
FACTS: Michael McPherson was spotted by law enforcement driving nearly 100 miles per hour. After he was stopped, the State seized his vehicle as property involved in the felony of fleeing or attempting to elude a police officer. The State initiated forfeiture proceedings by filing a notice of pending forfeiture under the Kansas Standard Asset Seizure and Forfeiture Act. The State served the notice on McPherson, who was told that if he wanted to claim ownership of the vehicle he had to file a verified claim with the district court within 30 days. McPherson received the notice but failed to either file a claim or ask for an extension of time in which to do so. After 30 days, the district court held a default judgment hearing. McPherson appeared and presented title and registration paperwork which proved that he owned the vehicle. The State objected, noting that McPherson failed to follow the provisions in the Forfeiture Act. The district court noted the objection but ordered the return of the vehicle. The State appealed.
ISSUE: Are the return provisions of K.S.A. 2015 Supp. 60-4111 mandatory?
HELD: The forfeiture statute has provisions which serve important purposes. Not requiring strict compliance undermines the purposes of the forfeiture statute. The provisions of K.S.A. 2015 Supp. 60-4111 are mandatory, not directory. In this case, it is clear that McPherson failed to comply with the statutory requirements. Given that fact, the district court erred when it ordered the property returned to McPherson. The majority ordered that the rehearing occur before a new judge.
CONCURRENCE (McAnany, J.): Judge McAnany concurred with the majority decision except that he would have the matter heard by the same judge on remand.
STATUTE: K.S.A. 2015 Supp. 8-1568, 60-4104(z), -4106, -4109(a)(4), -4111, -4111(a), -4114
Kansas Court of Appeals – Criminal
Criminal History–Invited Error–Sentencing
FACTS: Thomas was convicted of second-degree murder in 2002. He was assigned a criminal history score of B, in part because of a 1990 juvenile adjudication for "Burglary (Building Used As A Dwelling)" and classified as a person felony. In 2015, Thomas filed a motion to correct illegal sentence in which he argued that the sentencing court misclassified his 1990 burglary adjudication as a person offense. In denying his motion, the district court found that the Kansas Supreme Court's decision in State v. Dickey did not allow Thomas to raise a constitutional challenge in a post-direct appeal motion to correct an illegal sentence. Thomas appeals.
ISSUE: May a district court correct an illegal sentence in a post-direct appeal motion?
HELD: Even though Thomas did not challenge his criminal history score at sentencing, Thomas' appeal here is not barred by the doctrines of either waiver or invited error. There was no indication from the record on appeal that Thomas personally knew he was waiving any rights, such as the right to have a jury make factual findings regarding the classification of an offense. Likewise, Thomas' claim is not barred by res judicata. And because Dickey was not a change in the law but rather an application of a constitutional rule, it may be applied retroactively. The 1990 statute under which Thomas was adjudicated did not have a dwelling element, so to classify the adjudication as a person crime, the district court necessarily had to find that the prior adjudication involved a dwelling. Under Apprendi and its progeny, only a jury can make that finding. Thomas' 1990 adjudication should have been classified as a nonperson offense. Because it was not, Thomas' current sentence is illegal. Thomas must be resentenced.
DISSENT (Gardner, J.): Thomas had an obligation to challenge his criminal history score at sentencing. And Dickey bars a post-sentencing challenge to any convictions listed in the presentence investigation report. In this case, the nature of Thomas' adjudication meant that the district court did not have to engage in fact-finding to find that Thomas committed a person crime.
STATUTE: K.S.A. 21-4711(d), -4715(a), 22-3504(1)