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Recent Decisions and Hot Issues: Criminal Cases

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Recent Decisions and Hot Issues: Criminal Cases RECENT DECISIONS AND HOT ISSUES: CRIMINAL CASES Cases: February 1, 2020-February 1, 2021 The following are summaries of case highlights from opinions filed in the last 12 months by the Kansas Supreme Court or the Kansas Court of Appeals. They have been prepared by staff attorneys for the two courts and are not to be used as an authoritative reference regarding the cases described. Only the portion of each case related to the topic noted is discussed. You are encouraged to read the entire case before relying upon it. The effect of a petition for review: Pending determination of the Supreme Court on a peti- tion for review and during the time in which a petition for review may be filed, an opinion of the Court of Appeals is not binding on the parties or on the district courts. If a petition for review is granted, the decision or opinion of the Court of Appeals has no force or effect, and the mandate will not issue until disposition of the appeal on review. If review is denied, the decision of the Court of Appeals is final as of the date of the denial. A denial of a petition for review expresses no opinion of the Supreme Court on the merits of the case. See Kan. Sup. Ct. R. 8.03 AFFIRMATIVE DEFENSES SELF-DEFENSE IMMUNITY. The State charged Dukes with voluntary manslaugh- ter, alleging he acted with an honest but unreasonable belief that deadly force was justified during a fatal confrontation in a parking lot. Dukes moved for immunity from prosecution under K.S.A. 21-5231; the district court granted his motion and dismissed the case. On appeal, the Court of Appeals affirmed, finding the district court appropriately considered whether the State had established probable cause that Dukes' use of deadly force was not legally justified. State of Kansas v. Leon A. Dukes Jr., __ Kan. App. 2d __, 2021 WL 520052 (Feb- ruary 12, 2021). SELF-DEFENSE—DUTY TO INSTRUCT JURY. A trial court's failure to instruct a jury on the law of self-defense requires reversal of the defendant's first-degree premedi- tated murder conviction if the defendant and the victim were alone at the time the defendant 1 shot the victim and physical evidence does not render implausible the defendant's account claiming self-defense. State v. Keyes, ___ Kan. ___, 472 P.3d 78 (Sept. 11, 2020). FIRST AMENDMENT AS A DEFENSE. Arlando Trotter was convicted of operating a club without an entertainment establishment license, in violation of a Wichita city ordi- nance. Trotter appealed, arguing the ordinance was an unconstitutional prior restraint of his First Amendment free speech rights. The Court of Appeals affirmed. The ordinance consti- tuted a valid time, place, and manner restriction of speech as it regulated when and how the club could operate, not what music is could play. Nor was the ordinance a prior restraint. The licensing process included adequate safeguards, including a list of content-neutral rea- sons for denial of an application and an appeal process, to prevent arbitrary enforcement. City of Wichita v. Arlando Trotter, __ Kan. App. 2d __, 475 P.3d 365, 2020 WL 5740895 (Sept. 25, 2020), petition for rev. filed (Oct. 26, 2020), petition for rev. denied (Jan. 21, 2021). INSANITY DEFENSE. In 2018, the Kansas Supreme Court reaffirmed its longstanding ruling that the Kansas Legislature's adoption of the mens rea approach for the insanity defense—rather than the M'Nagten rule—does not violate due process. The United States Supreme Court granted certiorari. In a 6-3 decision, the Court agreed, holding that due process does not require a state to adopt an in insanity test that turns on a defendant's ability to recognize the immorality of the crime committed. Moreover, no insanity rule in this country's heritage or history was ever so settled as to tie a state's hands centuries later. Kahler v. Kansas, 589 U.S. ___, 140 S. Ct. 1021, 206 L. Ed. 2d 312 (Mar. 23, 2020). SELF-DEFENSE IMMUNITY. To resolve a pretrial motion for immunity under Kan- sas' self-defense statutes, a trial court must first make factual findings drawn from the par- ties' stipulations or evidence received at a hearing. Then, the court must determine whether the State demonstrated probable cause—i.e., "the facts as found by the district court are sufficient for a person of ordinary prudence and caution to conscientiously entertain a rea- sonable belief of defendant's guilt despite the claim of justified use-of-force immunity." State v. Collins, 311 Kan. 418, 461 P.3d 828, 835 (Apr. 24, 2020); State v. Thomas, 311 Kan. 403, 461 P.3d 149 (Apr. 24, 2020). APPELLATE PROCEDURE REVIEW OF DEPARTURE SENTENCE. The standard of appellate review for de- cisions granting or denying sentencing departure based on nonstatutory factors follows a three-part framework: (1) determine whether the sentencing court's nonstatutory factor can be a mitigating factor as a matter of law under K.S.A. 2019 Supp. 21-6815(c); (2) determine 2 whether the nonstatutory factor's existence is supported by the record; and (3) determine whether the sentencing court acted reasonably when it concluded there was a substantial and compelling reason to depart in a particular case based on the nonstatutory factor, either by itself or collectively with other factors cited by the sentencing court. State v. Morley, __ Kan. __, __ P.3d __, 2021 WL 299625 (Jan. 29, 2021). PLEA WITHDRAWAL. When an appellate court determines a district court abused its discretion by basing the denial of a motion to withdraw plea on an error of law, the case must be remanded to the district court with directions to apply the correct standard. The error is not amenable to harmless-error analysis. State v. Herring, __ Kan. __, 474 P.3d 285 (Oct. 16, 2020). CUMULATIVE ERROR. Aggravated battery conviction reversed due to cumulative harmful effect of prosecutorial error and jury instruction error. Cumulative error may occur when 2 or more individually harmless errors compound on each other. Where an instruction was erroneous because it did not communicate the requisite culpable mental state, and a prosecutor's improper comments invited the jury to make emotional assessment of whether the defendant's conduct was "okay," thus increasing jury uncertainty about the required mental state, the errors combined to be cumulatively reversible. State v. Thomas, 311 Kan. 905, 468 P.3d 323 (Jul. 24, 2020). CRIMINAL LAW SUFFICIENCY OF THE EVIDENCE. Matthew Allen Olsman appealed from his convictions and sentence for attempted rape and kidnapping. The Kansas Court of Appeals affirmed the attempted rape conviction but reversed the kidnapping conviction because the underlying conduct was incidental to and inherent in the conduct supporting his attempted rape conviction. Judge Warner dissented in part. State of Kansas v. Matthew Allen Olsman, __ Kan. App. __, 473 P.3d 937, 2020 WL 5265561 (Sep. 4, 2020), petition for rev. filed (Oct. 5, 2020), petition for rev. denied (Feb. 2, 2021). DOUBLE JEOPARDY MULTIPLICITY. Where a defendants convictions for attempted robbery and attempted distribution of a controlled substance are predicated on the same overt act—i.e., the overt act toward commission of aggravated robbery was the attempt to possess a controlled sub- stance—the convictions are not multiplicitious. Convictions based on different statutes 3 may be multiplicitious, but only if the statutes upon which the convictions are based con- tain an identity of elements. State v. George, 311 Kan. 693, 466 P.3d 469 (Jun. 26, 2020). DRIVING UNDER THE INFLUENCE LICENSE SUSPENSION-LEGALITY OF POLICE ENCOUNTER. On judi- cial review of an administrative order suspending a driver's license, the reviewing court may set aside the suspension order if the driver demonstrates the law enforcement encoun- ter underlying the suspension proceeding was unlawful. Jarvis v. Kan. Dep't of Revenue, __ Kan. __, 473 P.3d 869 (Oct. 9, 2020). PRIOR MISSOURI DWI. Jessica Myers was charged with felony DUI based on prior Missouri convictions for DWI. The district court held Myers' DWIs prohibited a broader range of conduct than DUI and struck them from her criminal history. Effective July 1, 2018, the Legislature enacted factors for determining whether an out-of-state conviction is comparable to DUI and can therefore be used to elevate a DUI charge to a felony. One of the factors requires courts to consider whether the out-of-state offense prohibits "similar conduct" to DUI. A majority Court of Appeals panel held the "similar conduct" factor must be analyzed using an identical-to-or-narrower-than rule to avoid violating Apprendi and affirmed the district court. The dissent and other panels disagree with the holding. E.g., State v. Mejia, ___ Kan. ___, 466 P.3d 1217 (Kan. App. 2020). State of Kansas v. Jessica Lynn Myers, __ Kan. App. 2d __, 475 P.3d 1256, 2020 WL 5849370 (October 2, 2020), petition for rev. filed (Oct. 26, 2020), petition for rev. granted (Jan. 28, 2021). PRIOR OUT-OF-STATE CONVICTIONS. Dwayne Lynn Patton was convicted of DUI with three or more prior DUI convictions. The Court of Appeals determined that the district court correctly relied on the sentencing scheme in effect at the time of sentencing— not the scheme in effect when the offense was committed—to enhance Patton's sentence with his previous out-of-state DUI convictions State v. Patton, __ Kan. App. __, 475 P.3d 14, 2020 WL 5491848 (Sept. 11, 2020), petition for rev. filed (Oct. 13, 2020), petition for rev. granted (Jan.
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