Some bad harmless error/prejudice analysis.Despite the bad results, there was a pretty big prior bad acts evidence ruling in State v. Gunby, No. 91,406 (Kan. Oct. 27, 2006), everyone should read. Justice Beier washed away years of bad law regarding evidence admissible independent of K.S.A. 60-455 and/or res gestae.Our increasingly elastic approach to the admission of evidence of other crimes and civil wrongs is overdue for correction, as are the two problems that gave rise to the practice of admitting such evidence independent of K.S.A. 60-455. We hereby state unequivocally that the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive.

The KSC applied its recent prior bad acts evidence case law and held that the evidence was not admissible in this case:The State argues that Boggs' prior use of marijuana was relevant in this case to prove the intent element in both charges because intent is always a material fact in possession cases. In particular, the State asserts that this court has long permitted evidence of prior drug use to be admitted in cases involving possession of drugs or drug paraphernalia to prove the defendant's intent to use drugs, the defendant's knowledge that the particular substance possessed consisted of drugs or was drug-related, or to prove an absence of mistake or accident in possessing the contraband material.The State correctly points out that this court has previously held that evidence of prior crimes or civil wrongs may be admissible under K.S.A. 60-455 to prove intent, knowledge, or absence of mistake or accident in cases involving possession of drugs or drug paraphernalia. The State fails to recognize, however, that in all cases where this court has held such evidence to be admissible on these bases, the question of the defendant's intent, knowledge, or claim of mistake or accident was a disputed material fact in issue. . . . .We agree and find the reasoning of the Court of Appeals sound.

Rick Kittel and KU Defender Project student Drew Cummings won in State v. Brown, No. 101,819 (Kan. App. Aug. 6, 2010), obtaining a partial reversal in a Wyandotte County aggravated burglary prosecution. The substance of the issue involved a Boggs (blogged about here) issue:In Boggs, the Kansas Supreme Court stated that the crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime but whether the defendant has claimed that his or her actions were innocent. When the defendant's acts are susceptible to two interpretations—one innocent and one criminal—then the intent with which the actions were committed becomes the critical element in determining their character.

During cross-examination, over objection, the state cross-examined Mr. Cook about a prior possession conviction. The COA held that the evidence was improperly admitted: The problem in the case at bar is that the trial court did not inquire of, nor did the prosecutor cite, a provision of K.S.A. 60-455 for how Cook's prior conviction was admissible. The prosecutor's rationale for admitting Cook's prior conviction was that it showed that Cook was biased, that he lied about not having a place to live in Kansas as required by the conditions of his probation, and that Cook could not just get up on the stand and lie.

Kerry E. McQueen and Stephen C. Griffis won in State v. Prine, No. 93,345 (Kan. Jan. 16, 2009), obtaining a new trial in a Finney County statutory rape case. The KSC reversed because of improper admission of prior bad acts pursuant to K.S.A. 60-455. The KSC held that intent nor absence of mistake or accident were not at issue in the statutory rape case and therefore the prior bad acts could not be admitted on those bases.

The KSC held that the same situation presented in the instant case:In summary, this court has adopted a rule that distinguishes between cases in which the defendant acknowledges but attempts to provide an innocent explanation for his or her actions and those in which the defendant disputes the allegations outright. As we stated in Boggs: "[T]he defendant's use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455." Applying that same analysis here, we hold that Preston's prior conviction was not admissible under K.S.A. 60-455 and Boggs because he disputed the drugs were his.The KSC went on to hold that the "State carries the burden to demonstrate there is no reasonable probability that the error affected the trial's outcome in light of the entire record because it was the beneficiary of this nonconstitutional error."

We have no confidence in the reliability of the guilty verdicts, and we reverse all of King's convictions and remand the case for further proceedings. The KSC also reached an issue regarding whether the state could admit evidence pursuant to K.S.A. 60-455 of acquitted conduct. The KSC recognized that collateral estoppel could apply to make such use of evidence improper:Should this case be retried, and should the State again seek to introduce evidence of J.B.'s past allegations against King, the district judge will have to analyze whether the prosecution in which King was acquitted had at its heart the same issue or issues to be entrusted to the second jury in this case.

The only potential materiality of the prior conviction is to prove that Everett had the tools to manufacture methamphetamine in the past and probably manufactured methamphetamine this time, i.e., Everett had a propensity to commit the crime. This is precisely the harm K.S.A. 60-455 was designed to prevent, and Gunby clarified that evidence is not admissible if its only purpose is to establish a propensity to commit a crime. The evidence that Everett had been convicted of possession of drug paraphernalia with intent to manufacture methamphetamine was not material, and it was error to admit the evidence even in rebuttal.

lammatory photographsDefendant mentally retardedState v. Francis Everett, No. 100,529 (Smith) Direct appeal (petition for review); Manufacture Randall L. Hodgkinson [Rvd; Luckert; March 29, 2013]Improper prior bad act evidenceImproper late amendment of complaintImproper response to jury question re hung juryFailure to recall jury after evidence of jury misconductState v. Adam Ardry, No. 101,311 (Sedgwick) Sentencing appeal (petition for review) Patrick H. Dunn [Rvd/Rmd; Rosen; Oct. 5, 2012]Failure to exercise discretion to consider lesser sentence when revoking probationState v. Jason Schaeffer, No. 104,503 (Shawnee) Sentencing appeal; First-degree murder Nancy Ogle [Affimed; Beier; Oct. 19, 2012]Whether sentence resulted from partiality, prejudice, or corrupt motiveAugust 29--Wednesday--a.m.State v. John Prine, No. 103,242 (Reno) Direct appeal (transfer); Rape/Aggravated criminal sodomy Matthew J. Edge [Affirmed; Beier; May 31, 2013]Improper admission of prior bad act evidenceAmended K.S.A. 60-455 violates Ex Post Facto ClauseState v. Randy Hart, No. 101,723 (Elk) Direct appeal (petition for review); Aggravated indecent liberties Shawn Minihan [Affirmed; Beier; June 7, 2013]Insufficient evidence of age of complaining witnessImproper prosecutorial argument (vouching)Jury instructions broader than charging documentImproper admission of prior bad act evidenceErroneous limiting instruction re prior bad act evidenceState v. Edward Spear, III, No. 104,206 (Reno) Direct appeal; Aggravated indecent liberties Lydia Krebs [Affd/Rvd; Luckert; July 5, 2013]Improper admission of prior bad act evidenceInsufficient evidenceLife sentence is Cruel or Unusual Punishment State v. Karl Beaman, No. 103,361 (Wyandotte) Direct appeal; Rape Heather R. Cessna [Affd/Vacd/Rmd; Biles; Oct. 19, 2012] Improper jury trial waiverFailure to grant continuanceFailure to grant depatureAugust 30--Thursday--a.m.State v. Heather Hilton, No. 102,256 (Ellis) Probation violation appeal (petition for review) Matthew J.

This case is one of the rare ones in which cumulative error dictates reversal of the defendant's convictions and remand for further proceedings, because it is our view Magallanez did not get a fair trial and the evidence was not so overwhelming as to overcome the error. The five errors that, viewed collectively, substantially prejudiced Magallanez and denied him a fair trial were: prosecutorial misconduct, the overbreadth of the trial court's shotgun limiting instruction under K.S.A. 60-455, the redaction of J.P.'s letter to Magallanez, lack of jurisdiction to convict on aggravated indecent liberties as to S.S., and the inclusion of the "burden on both sides" language in the Allen-type instruction.We have discussed already the potential danger when prosecutors embellish the burden of proof required in criminal cases, and the prosecutor committed this error by diluting the reasonable doubt standard in this case. Our prior case law also recognizes a defendant is entitled to have guilt determined solely based on the evidence introduced at trial, not other circumstances.