KANSAS COURT OF APPEALS
STATE V. ALBANO, No. 120767
1. An appellate court employs a multi-step process to review claims of jury instruction error. First, the court must decide whether the issue was preserved. Second, it must decide whether an error occurred by determining whether the instruction was legally and factually appropriate. Finally, if error is found, the court must then determine whether the error is reversible.
2. If K.S.A. 60-455 evidence is admitted at trial, then a limiting instruction is generally required. But the district court's failure to give a limiting instruction concerning K.S.A. 60-455 evidence is not always reversible error. Under the facts and circumstances of this case, the district court's failure to give a limiting instruction concerning the admissibility of the defendant's prior drug convictions was not clearly erroneous.
3. The district court does not undermine the jury's power of nullification by instructing the jury that it "must" follow the law and that it is the jury's "duty" to do so.
4. The sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines Act does not violate section 5 of the Kansas Constitution Bill of Rights.
Anita Jo Albano appeals following her convictions of two counts of distribution of a controlled substance within 1,000 feet of a school. Albano claims: (1) The district court erred by failing to give a limiting instruction concerning the admission into evidence of her prior drug convictions; (2) the district court undermined the jury's power of nullification by instructing the jury that it "must" follow the law and it was the jury's "duty" to do so; and (3) the sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines Act (KSGA) violates section 5 of the Kansas Constitution Bill of Rights. For the reasons stated in this opinion, we reject Albano's claims and affirm the district court's judgment.
STATE V. R.W., No. 120854: Suppression of custodial interrogation of a minor upheld.
R.W.—who was a juvenile at the time—was interrogated for several hours at a police facility in Lawrence after being picked up from his high school by two police officers. Several months later, the State charged R.W. with multiple criminal counts including rape, aggravated battery, and other offenses. The district court certified him for trial as an adult. Prior to trial, the district court granted R.W.'s motion to suppress the statements he made during the interrogation because they were not voluntarily made. The State then filed this interlocutory appeal claiming that the district court erred in suppressing R.W.'s statements. After reviewing the record, we find no error. Thus, we affirm the district court's suppression order.
1. The Fifth Amendment to the United States Constitution protects an individual's right against self-incrimination. This right is extended to the states through the Fourteenth Amendment. The Kansas Legislature has codified the right against self-incrimination in K.S.A. 60-460(f).
2. The touchstone consideration in cases involving issues of self-incrimination is voluntariness. The burden is on the State to prove—by a preponderance of the evidence—that confessions or inculpatory statements made to law enforcement officers are voluntary.
3. Courts look at the totality of the circumstances on a case-by-case basis to determine whether impermissible coercion was present and whether that coercion overbore the defendant's free and independent will. Impermissible coercion can be either mental or physical.
4. Generally, courts determine whether confessions or inculpatory statements made to law enforcement officers are voluntary by looking to the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interview; (3) the accused's ability to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the officer's fairness in conducting the interview; and (6) the accused's fluency with the English language.
5. When the accused is a juvenile, courts must exercise the greatest care and heightened sensitivity in assessing the validity of a confession or inculpatory statement made to law enforcement officers. In cases involving the custodial interrogation of juveniles and if legal counsel is not present, courts not only must make sure that a confession or inculpatory statement was not coerced but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair.
6. In assessing the voluntariness of a juvenile's confession or inculpatory statements, courts are to consider five additional nonexclusive factors: (1) the juvenile's age; (2) the length of questioning; (3) the juvenile's education; (4) the juvenile's prior experience with law enforcement officers; and (5) the juvenile's mental state.
7. Statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of a custodial interrogation have the potential to render a confession or inculpatory statement involuntary.
8. Even for an adult, physical and psychological isolation during a custodial interrogation can undermine an individual's will to resist and compel a person to speak when they would not otherwise do so freely. The risk of such isolation is even more troubling when the subject of the interrogation is a juvenile.
KANSAS SUPREME COURT
STATE V. COLEMAN, No. 118673
The K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer's probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after July 1, 2017.
1. Interpretation of a statute is a question of law over which appellate courts have unlimited review.
2. Generally, a statute operates prospectively unless there is clear language indicating the Legislature intended it to operate retrospectively.
The State moved to revoke Kevin Coil Coleman's probation in January 2017 for failure to report. The Kansas Legislature enacted K.S.A. 2017 Supp. 22- 3716(c)(9)(B), effective July 1, 2017, which permitted a trial court to revoke a probationer's probation without first imposing graduated sanctions if the probation was granted as the result of a dispositional departure. See L. 2017, ch. 92 § 8. Coleman was arrested and his probation, which had been granted as a dispositional departure, was later revoked at a hearing on November 1, 2017. A majority of the Court of Appeals determined that the trial court could not revoke Coleman's probation without first imposing intermediate sanctions and remanded to the trial court. Because we hold that K.S.A. 2017 Supp. 22-3716(c)(9)(B) does not apply to probationers such as Coleman whose offenses were committed before that statute's effective date, we remand for a new probation violation hearing with directions.