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|December 4, 2015, Appellate Court Digests|
Kansas Supreme Court – Criminal
FACTS: Jury convicted Sprague of premeditated first-degree murder of wife. Hard 50 sentence imposed pursuant to K.S.A. 22-4635. On appeal Sprague claimed: (1) jury should have been given unanimity instruction where State presented evidence the victim could have been killed by blow to head or by strangulation; (2) evidentiary hearing was required on Sprague’s pre-sentencing motion for ineffective assistance which district court summarily denied; (3) prosecutorial error in closing argument; (4) conviction violated corpus delecti rule because Sprague’s extrajudicial statements to police were uncorroborated; (5) motion for acquittal should have been granted because insufficient evidence supported the conviction; (6) error to admit gruesome pictures; (7) motion to suppress evidence found in Morton building should have been suppressed because search went outside scope of warrant for search of home; (8) cumulative error denied Sprague a fair trial; and (9) the hard 50 sentence was unconstitutional.
ISSUES: (1) Unanimity Instruction, (2) Motion Alleging Ineffective Assistance of Counsel, (3) Prosecutorial Misconduct, (4) Corpus Delecti Rule, (5) Motion for Acquittal, (6) Admission of Gruesome Pictures; (7) Constitutionality of Hard 50 Sentence
HELD: No unanimity instruction was required because this was not a multiple acts case.
Sprague’s motion alleging ineffective assistance of counsel was insufficient to require an evidentiary hearing. No error in district court’s summary denial of the motion.
Prosecutor’s use of "preposterous” to describe defendant’s story was improper as conceded by State. Prosecutor implying two witnesses had "no motive” when testifying was also improper. Error was harmless, however, where comments were not gross and flagrant, were no product of ill will, and had no effect on outcome of trial in light of overwhelming evidence against Sprague.
Sprague was not convicted in violation of corpus delecti rule. Rule’s clarification in State v. Dern, 302 Kan. __ (2015), is cited. Here, "formal” application of rule was clearly satisfied where State far exceeded the evidentiary threshold necessary to establish the murder of the victim.
No error in denying motion for acquittal. Ample evidence supported Sprague’s conviction.
Admission of gruesome images claim is dismissed because it was not preserved for appeal.
No error in denying motion to suppress evidence. Under facts of case, warrant authorizing search of the home was sufficient in scope to authorize law enforcement’s search of the outbuilding.
Cumulative error did not deny Sprague a fair trial. Two instances of harmless prosecutorial error, considered together, are likewise harmless.
As recognized in State v. Soto, 299 Kan. 102 (2014), hard 50 sentencing scheme in K.S.A. 22-4635 violates Sixth Amendment as interpreted in Alleyne v. U.S., 133 S.Ct. 2151 (2013). Sprague’s hard 50 sentence is vacated. Case is remanded for resentencing. Whether the new hard 50 statute, K.S.A. 2013 Supp. 21-6620, violates Ex Post Facto Clause when retroactively applied under subsection (f) is unripe issue in this case, and court refrains from issuing advisory opinion as State encourages.
STATUTES: K.S.A. 2014 Supp. 22-3601(b)(3); K.S.A. 2013 Supp. 21-6620; K.S.A. 21-3401, -4635, 22-3419, 60-261, -404, -1507
Kansas Court of Appeals – Criminal
PROBATION REVOCATION; INTERMEDIATE SANCTIONS; FAILURE TO RAISE ISSUE BELOW
FACTS: Andre K. Battle was convicted in separate cases of possession of cocaine and three counts of burglary. He received a controlling sentence of 11 months' incarceration for the burglary convictions and a consecutive sentence of 28 months' incarceration for possession of cocaine. The district court granted probation in both cases for a period of 18 months. After repeated probation revocations and reinstatements, the district eventually revoked Battle's probation for good. He did not challenge the order to serve his underlying incarceration sentence.
ISSUES: (1) Probation revocation, (2) intermediate sanctions, and (3) failure to raise issue below
HELD: Court held Battle's issue on appeal was not properly raised either at the probation revocation hearing or before he filed his notice of appeal. Court concluded the intermediate sanction issue was not preserved for appellate review.
STATUTE: K.S.A. 22-3716
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