A view from the trenches

After handling criminal defense appeals for the last several years, I recently transferred to a public defender office.  This move will involve being at the courthouse on a daily basis.  Naturally, that change in positions has brought a new perspective when reading and analyzing recent federal and state decisions. 

With this different viewpoint,  my blog posts will aim to discuss the possible impact that cases may have on those practicing in the courtroom.  In other words, a review of recent appellate decisions from the trial lawyer's point of view.

The posts will range from simple courtroom practices to substantial changes in criminal law.  Along the way, I hope these posts will include trial practice discussions regarding pre-trial motions, jury instructions, closing arguments.  If nothing else, I write to educate myself and those who are along side me in the trenches.   

Failure to give self-defense requires new trial in second-degree murder case

Carol Longenecker Schmidt won in State v. Williams, No. 107,366 (Kan. App. Jan. 17, 2014)(unpublished), obtaining a new trial in a Sedgwick County second-degree murder prosecution.  Although the COA affirmed a conviction for aggravated battery, the COA held that the failure to give a self-defense instruction required a new trial.  The state charged Mr. Williams with intentional second-degree murder.  The jury convicted Mr. Williams of unintentional second-degree murder.  The district court refused to give a self-defense instruction.  After detailed consideration of the record, the COA held that, viewed in a light most favorable to Mr. Williams, some evidence would have supported self-defense and, therefore, the district court erred by failing to give the requested instruction.

But because the jury acquitted Mr. Williams of intentional second-degree murder, the state argued that any error was harmless in part because self-defense is incompatible with unintentional second-degree murder.  The COA disagreed:

To prove reckless second-degree murder in this case, the State had to show Williams killed Donald “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” See K.S.A. 21–3402(b). As that statute has been interpreted by the Supreme Court in Deal, however, the State only had to establish that the killing itself was unintentional. The State was not required to establish that the acts prior to and leading up to Donald's death were reckless or careless; in fact, a finding by the jury that the acts causing Donald's death were intentional would be wholly consistent with a conviction for reckless second-degree murder under the statute as interpreted by [State v. Deal, 293 Kan. 872, Syl. ¶¶ 1, 2, 269 P.3d 1282 (2012)] as long as the jury found the killing itself was unintentional. Thus, the fact that a killing itself is unintentional under K.S.A. 21–3402(b) does not preclude a finding that a defendant engaged in voluntary and deliberate acts leading up to and actually causing the death of the victim.

Applying the statute as construed by the Supreme Court in Deal, we conclude Williams had a viable claim of self-defense to murder in the second degree (unintentional), the lesser included offense upon which he was convicted. Williams admitted that he intentionally swung a knife at Donald in order to keep Donald from beating him with the broom or mop. Williams also admitted that after Donald came toward him and grabbed his forearm and hand, Williams intentionally pushed Donald into a glass door and, in the process, inadvertently stabbed Donald in the chest. Williams repeatedly denied, however, that he ever intended to kill Donald. Thus, had the court provided it, an instruction on self-defense would have advised the jury that the voluntary and deliberate acts of deadly force leading up to and actually causing Donald's death were justified to the extent it appeared to Williams and that he reasonably believed the use of deadly force was necessary to prevent imminent death or great bodily harm.

 The COA also rejected the state's claim that, by not convicting of voluntary manslaughter, the jury evinced its rejection of the first element of self-defense:

In this case, however, the jury rejected voluntary manslaughter in favor of unintentional second-degree murder, an unintentional crime. Unlike the jury in Gonzalez, then, the jury here not only rejected the notion that Williams honestly believed the circumstances justified using deadly force, but it also rejected the notion that Williams intentionally killed Donald. Given the jury entered a general verdict, there is no way to determine whether it decided to forgo the option of voluntary manslaughter because the killing was not intentional or because Williams did not subjectively believe deadly force was necessary. Because there is no way to know why the jury passed on voluntary manslaughter, we are not persuaded that the jury already had rejected the subjective belief prong of the two-prong self-defense test at the time it was considering the lesser included offense of unintentional second-degree murder. For this same reason, we similarly are not persuaded that the jury verdict at the first trial resulted in a de facto acquittal of voluntary manslaughter.

As a result, the COA reversed the unintentional second-degree murder conviction and remanded for a new trial, including any lesser-included offenses supported by the evidence.

[Update: the state filed a PR on February 14, 2014.  Mr. Williams filed a cross-PR on February 18, 2014.]

[Further update: the KSC denied both the state's PR and Mr. William's cross-PR and the mandate issue on May 1, 2014.]

Misconduct is gross and flagrant and shows ill will

Daniel E. Monnat won in State v. Akins, No. 105,809 (Kan. Jan. 10, 2014), obtaining a new trial in a McPherson County aggravated indecent liberties with a child prosecution.  During cross-examination of the defense expert, the prosecutor asked if the witness knew that "Finding Words had been called the gold standard" and cited a case to the witness.  The KSC agreed with the state's concession that such questioning was misconduct:

We readily agree with the State's concession. Listing but several of the numerous reasons will suffice for our purposes. First, in identifying the Finding Words protocol as the gold standard, the prosecutor was improperly referring to facts that were never in evidence. This prohibition applies to all lawyers, but especially prosecutors.  And where a prosecutor refers to facts not in evidence, the first prong of the prosecutorial misconduct test is met.

Second, mentioning a court case as supporting authority in the jury's presence essentially implies that this aspect of the prosecutor's case against Akins already had judicial approval. More specifically, it improperly implies that a court had conclusively established that the Finding Words protocol was not only the "gold standard" but was also therefore unassailable.

The KSC was also bothered by the fact that the case cited by the prosecutor was not even a majority opinion, but merely a notation in a concurring opinion.

The prosecutor also repeated a theme that Mr. Akins had been "grooming" the victim.  The KSC agreed with the defense that this assertion was not founded in evidence:

Likewise, while the State is correct that the prosecutor never explicitly asserted that grooming is typical in sexual abuse cases, this absence does not necessarily mean she intended to use grooming in its everyday sense. We observe she repeatedly argued that Akins groomed the alleged victims in preparation for acts of sexual abuse. And because grooming is a well-known phenomenon in sexual abuse cases, the jury could reasonably infer that the prosecutor was referring to the psychological concept of grooming. Accordingly, the prosecutor's argument required supporting evidence; without it, the prosecutor was arguing facts not in evidence.

The KSC also held that the prosecutor improperly commented on the credibility of the witnesses.  The KSC held that the comments were gross and flagrant, motivated by ill will, and, as a result, remanded for a new trial.

The KSC also held that the district court improperly excluded evidence of prior false allegations made by the complaining witness against her father:

We conclude the district court erred by excluding testimony of Jennifer's and M's past allegations of sexual abuse by M's father based solely on the witnesses' relationship with Akins. K.S.A. 60-407(a) provides that "every person is qualified to be a witness." And a witness' familial relationship with a party, or some other potential biases, is not grounds for excluding the witness' testimony. The family relationship only goes to the weight of the evidence, i.e., credibility of the witness' testimony. Accordingly, the district court should not have required Akins to provide corroboration before admission of his evidence solely because it was composed of testimony of four family members. If the testimony is admitted at retrial, the State will be permitted to question the witnesses about their relationship with Akins because "'[b]ias, interest, or improper motives of a witness may always be shown in order to place the witnesses' testimony in proper perspective.'"