Cameras in Court?

If you find yourself in Judges Vratil, Martin, Murguia, Robinson, or Melgren’s Kansas District Court to participate in a hearing, such hearing may be recorded.  Kansas is one of fourteen United State District Courts to participate in a study placing cameras in courts.  The previously mentioned judges are those participating, who either favor or disfavor having cameras in the courtroom.  However, before the cameras can be turned on a few things must happen.  First, all the parties involved must give consent for the proceeding to be recorded.  Second, the judge has the discretion to order that the proceeding not be recorded.  Finally, criminal proceedings can not be recorded.    

Get Your Signals Straight

On February 24, 2009 Mr. Shigemura was pulled over for failing to use his turn signal when crossing toll plaza lanes, he was attempting to reach the only toll booth open, which was the “last one on the very right side of the roadway.”  United States v. Kitchell, 653 F.3d 1206, 1211 (10th Cir. 2011).  It took Trooper Hyde 21 minutes and 45 seconds to issue Mr. Shigemura a warning ticket.  Id. at 1218.  Because Mr. Shigemura and his passengers, including defendant Kitchell, were unable to tell the trooper the same story as to why they were traveling in a rental car and the multiple tasks Trooper Hyde had to perform in examining three individuals (driver, front seat passenger, back seat passenger) the lengthy traffic stop was not found to be unreasonable.  Id.  In the end, back seat defendant John Kitchell was arrested and convicted for possessing firearms (found in the trunk of the car).  Id.  at 1211. 

If you have questions or concerns regarding what you considered a unreasonably lengthy traffic stop contact Lindsey and Dionne at www.ericksonscherff.com for counsel and assessment of your charges. 

Say what you Mean... Mean what you say...

On July first the Kansas Court of Appeals held that the terms “obtains” and “exerts control over” in the theft statute did not create an alternative means that requires the state to prove both means.  State v. Rollins, 46 Kan. App. 2d 17, 20, 257 P.3d 839, 843 (2011). Defendant Rollins, a Wall Ties employee, stole “skids” of aluminum forms on the evening of July 31, 2008.  His actions were caught by nighttime videos.  Id.  at 19. 

During trial, Rollins argued that the state had failed to prove both means of the crime of theft, pursuant to the statute.  Id.  at 20.   Looking to the plain meaning of the statute, the court concluded that there is “no quantifiable difference between the actions that constitute obtaining or exerting; these words create a distinction without a difference.  One must necessarily obtain property one has exerted control over, and one must necessarily exert control over property one has obtained.” 

If you have questions or concerns regarding a theft charge, contact Lindsey and Dionne atwww.ericksonscherff.com for counsel and assessment of your claims.  

Get Your Story Straight....

In June of 2009 highway troopers pulled up behind the stopped vehicle of defendant, Thomas Perkins.  State v. Perkins, 46 Kan. App. 2d 121, 122 (2011).  According to the passenger, he and Perkins were switching drivers because Perkins’ back was hurting, when in fact he was highly intoxicated.  Id.  But, while at trial, Perkins and the passenger testified that the passenger had been driving the entire time and that they only pulled over when Perkins got sick.  The jury didn’t buy it.  Id. 

On appeal, Perkins argued that there was insufficient evidence to support that he was driving or attempting to drive a vehicle under the influence.  Id. at 123.  The Kansas Court of Appeals held that attempting to operate a vehicle, functionally operates as an alternative means of driving under the influence.  Id. at 121.  

If you have questions or concerns regarding a DUI offense contact Lindsey and Dionne at www.ericksonscherff.com for counsel and assessment of your claims.  

New Supreme Court Decision

This past June the Supreme Court of the United States handed down a 7-2 decision in Davis v. United States that faded the “exclusionary rule.”  Davis, the petitioner, was a passenger in a vehicle when it was pulled over.  Davis was first arrested for providing the police with a false name, and then found to have violated a federal statute because the police found a gun in his coat pocket.  Davis was a convicted felon. 

Prior to the Eleventh Circuit’s decision of Davis’s appeal, the Court found in Arizona v. Gant that searches like Davis’s were illegal. The court found that while the search did violate Davis’s constitutional rights, it could not however be excluded evidence and could be used at trial.  The Court reasoned that the exclusionary rule is meant to deter officers from illegal activity, and because the police, at the time, were making a good-faith effort to conduct the search within the current law they could not have know they were violating his rights.  Suppression, the court found, would not serve as deterrence.

Protect Your 4th Amendment Rights

On July 23, 2007 Joshua Burchett, then 17, was driving without taillights when officer Billings attempted to pull Burchett over.  Mascorro v. Billings, 2011 WL 3836439, No. 10-7055, at *1 (10th Cir. Aug. 31, 2011).  Burchett resisted arrest when he drove two more blocks, ran into his parents’ home, and hid in the bathroom.  Id.  According to Burchett’s parents, Officer Billings pounded on their door demanding to come inside, pointed a gun at Jose Mascorro (Burchett’s step-father) when he opened the door, and sprayed the parents and 14 year-old son with mace as the officer broke into the home.  Id.  The Mascorro’s home was torn apart by Billings and fellow officers.  Id. at *2. 

On appeal, the 10th circuit refused to hear the officers plea for qualified immunity because their story of that night’s events were much different than the Mascorros’.  Id.  Furthermore, the court held that the Mascorros were protected under the Fourth Amendment against the forceful entry into their home by the officers.  Id.  at* 5.  The court reasoned that the officers were not entitled qualified immunity because the circumstances involving the arrest did not amount to exigent circumstances.  Id.  “[T]he pursuit of a misdemeanant” unlike the “hot pursuit of a felon” is not sufficient for forceful entry into a person’s home.  Id.  at *6.

If you believe, that like the Mascorro’s, your Fourth Amendment rights have been violated during an arrest, contact Lindsey and Dionne at www.ericksonscherff.com for counsel and an assessment of your claims. 

Jury Instruction Objection

Jury Instruction Objection

In August, the Kansas Supreme Court determined, in State v. Duong, 257 P.3d 309, that the district court did not make a clearly erroneous error when it failed to give the eyewitness cautionary instruction in an aggravated indecent liberties with a child case.  However, the defendant argued that the case turned on the fact that the child could not correctly identify the defendant.    

The eyewitness cautionary instruction identifies that it is the State’s burden to identify the defendant, and that the “law does not require the defendant to prove (he)(she) has been wrongfully identified.”  In the Duong case, because he did not request the instruction, the court could not reverse unless the judge’s failure to give the instruction was clearly erroneous.  Id. at 318.  Because the Supreme Court found that it would not have been “a real possibility” that the jury would have acquitted Duong, the failure to give the instruction was not a clearly erroneous mistake. 

If you believe that giving the eyewitness cautionary instruction could have changed your case, see Lindsey and Dionne at www.ericksonscherff.com for assistance.