363 P.3d 875 (Kan. 2015), 90,196, State v. Robinson

Docket Nº:90,196
Citation:363 P.3d 875
Opinion Judge:Stegall, J.
Party Name:STATE OF KANSAS, Appellee/Cross-appellant, v. JOHN E. ROBINSON, SR., Appellant/Cross-appellee
Attorney:Paige A. Nichols, of Lawrence, argued the cause, and Joseph W. Luby, of Death Penalty Litigation Clinic, of Kansas City, Missouri, was with her on the briefs for appellant/cross-appellee. Steven J. Obermeier, senior deputy district attorney, and Jacob M. Gontesky, assistant district attorney, arg...
Judge Panel:Luckert, J., not participating. Michael J. Malone, Senior Judge, assigned.[1] Malone, J., concurring: Johnson, J., dissenting:
Case Date:November 06, 2015
Court:Supreme Court of Kansas
 
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Page 875

363 P.3d 875 (Kan. 2015)

STATE OF KANSAS, Appellee/Cross-appellant,

v.

JOHN E. ROBINSON, SR., Appellant/Cross-appellee

No. 90,196

Supreme Court of Kansas

November 6, 2015

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Appeal from Johnson District Court; JOHN ANDERSON III, judge.

SYLLABUS BY THE COURT

1. A constitution-based claim for venue change can arise under a theory of presumed or actual prejudice. Presumed prejudice occurs when pretrial publicity is so pervasive and prejudicial that there can be no expectation of an unbiased jury pool in the community. In deciding whether to presume prejudice under the Sixth Amendment to the United States Constitution, an appellate court considers seven factors: (1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty. Actual prejudice occurs when the effect of pretrial publicity is so substantial as to taint the entire jury pool.

2. K.S.A. 22-2616(1) compels a venue change when the district judge is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he or she cannot obtain a fair and impartial trial in that county. The court considers nine factors in deciding whether community prejudice warrants a change of venue under K.S.A. 22-2616(1): (1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.

3. The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to counsel of choice, and due process prohibits judicial officers from punishing or retaliating against a defendant for exercising this right.

4. Not every restriction on counsel's time or opportunity to investigate or to consult with his or her client or to otherwise prepare for trial violates a defendant's Sixth Amendment right to counsel. Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to counsel, and this right cannot be manipulated to impede the efficient administration of justice.

5. Pursuant to K.S.A. 22-3401, continuances may be granted to either party for good cause shown. In a criminal case, the decision to continue a case lies within the sound discretion of the district court, but where a defendant claims the denial of continuance interfered with his or her ability to present a defense, an appellate court reviews the question de novo.

6. Where a continuance is sought to retain new counsel, a trial court considers the following five factors: (1) whether a continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a continuance would prejudice the defendant.

7. The five factors used to consider a request for a continuance for the purpose of retaining new counsel do not apply in situations where one of several defense attorneys withdraws from the case and the defendant seeks a continuance to provide the remaining members of the defense team additional time to prepare for trial but does not seek new counsel.

8. In this case, the trial court did not abuse its discretion in denying requests for a continuance to provide appointed counsel, two experienced death penalty litigators, additional time to prepare a guilt phase defense following the withdrawal of retained counsel, where appointed counsel had represented defendant for nearly 7 months prior to retained counsel's withdrawal; appointed counsel still had another 7 months to prepare because the district judge had granted a previous, lengthy continuance; appointed counsel had the benefit of the work prepared by their predecessors over the course of nearly 2 years; appointed counsel had adequate resources, including the two lead attorneys and their two associate attorneys, one of whom entered his appearance following the withdrawal of retained counsel, an investigator, and several assistants; and defendant never sought appointment of new counsel following retained counsel's withdrawal.

9. When requesting a continuance to provide defendant additional time to develop a mitigation defense for the penalty phase of a capital murder trial, defendant must make an adequate proffer as to what mitigation evidence would be developed if relief were granted.

10. The Fourth Amendment to the United States Constitution requires that search warrants be issued by a neutral and detached magistrate.

11. The United States Supreme Court has recognized at least two circumstances in which a magistrate fails to satisfy the neutral and detached requirement. First, a magistrate who is involved in or who exercises law enforcement powers of the executive branch lacks neutrality and detachment. Second, a magistrate with a direct pecuniary interest in the outcome of the warrant proceedings also lacks neutrality and detachment.

12. In assessing whether a magistrate lacks neutrality and detachment, an appellate court considers whether the circumstances would offer a possible temptation to the average judge to abandon the correct balance of consideration between the State and the accused. In applying this standard, it conducts an individualized and contextual inquiry, in light of the totality of the circumstances.

13. The circumstances here--when the issuing magistrate had prosecuted the defendant 15 years earlier for unrelated financial crimes--do not establish a violation of the neutral and detached magistrate requirement. The magistrate had disengaged completely from law enforcement, had no involvement in any subsequent investigation or prosecution of the defendant, and had no knowledge of the defendant's possible involvement in other missing persons investigations; the former prosecution and current capital murder investigation did not arise from a common investigation or single transaction or event; and any overlapping facts between the magistrate's former prosecution of defendant and the current investigation were not probative of the probable cause determinations made by the magistrate.

14. When K.S.A. 22-2503 and K.S.A. 22-2505 are read together and considered alongside legislative amendments subsequent to the 1970 codification of the Kansas Code of Criminal Procedure, it is evident the legislature intended that district judges retain their pre-Code authority to issue search warrants executable statewide.

15. In this case, Lenexa police exercised " their powers as law enforcement officers" by planning, coordinating, and executing trash pulls from the defendant's Olathe residence over the course of several weeks in furtherance of their investigation, and this activity exceeded the officers' territorial jurisdiction pursuant to K.S.A. 22-2401a(2)(a).

16. When a defendant seeks to suppress evidence based on a violation of state law unrelated to the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights, application of the exclusionary rule does not inevitably follow.

17. K.S.A. 22-3216(1) provides a vehicle for defendants aggrieved by an unlawful search and seizure to move to suppress evidence, but it does not compel the trial court to grant such relief for any search conducted in violation of state law.

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