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June 16, 2017 Digests

Posted By Administration, Tuesday, June 20, 2017
Updated: Tuesday, June 20, 2017

Kansas Supreme Court

 

Criminal

 

constitutional law—criminal procedure
search and seizure—sentences
state v. hachmeister
shawnee district court—affirmed
court of appeals—affirmed
no. 112,260—june 17, 2017

FACTS: Police obtained search warrants during investigation of the murder of Hachmeister’s mother. Discovery of pornographic images of apparently prepubescent children during search of Hachmeister’s computer resulted in his conviction on 105 counts of sexual exploitation of a child. Sentence imposed included lifetime registration as a sex offender, based on district court finding the victims in the images were under 14 years old. Hachmeister appealed, claiming in part the district court erred in denying Hachmeister’s motions to suppress the recovered images, and claiming the sex offender registration requirement violated Apprendi. Court of Appeals affirmed in unpublished opinion. Hachmeister’s petition for review granted on two issues: (1) whether evidence from his computer should have been suppressed because it was not properly within the scope of search warrants issued during the homicide investigation; and (2) whether the district court violated Apprendi when it made the factual finding the victims were under 14 years old. 

ISSUES: (1) Search warrants , (2) lifetime registration as sex offender

HELD: All search warrants issued are reviewed. Hachmeister failed to preserve his challenge to three of them. The affidavit supporting a fourth warrant provided a sufficient basis for the district court to conclude there was a fair probability that evidence related to the murder might be found on Hachmeister’s computer.  Because probable cause supported that warrant, it did not taint the remaining warrant being challenged.

As decided in State v. Petersen-Beard, 304 Kan. 192 (2016), lifetime sex offender registration is not punishment for constitutional purposes, thus the finding that the victims were under 14 years old did not expose Hachmeister to an increased penalty within the meaning of Apprendi.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ.): Dissents from majority’s holding that lifetime sex offender registration is not punishment. 

STATUTE: K.S.A. 22-4901 et seq., 60-2101(b)

 

Kansas Court of Appeals

 

Civil

 

EVIDENCE—PARENTAL RIGHTS
IN RE L.M.B., A.B., AND L.B.
KIOWA DISTRICT COURT—AFFIRMED
NO. 116,155—JUNE 16, 2017

FACTS: The children in this case were removed after a relative alleged that the parents were using drugs in the home. All three children in this case are members of the Citizen Potawatomi Nation. The tribe was notified about the child in need of care (CINC) action almost as soon as it was initiated and a member of the Citizen Potawatomi Nation testified as an expert witness at the hearing on the motion to terminate parental rights. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficiency of the evidence; (2) qualification of the State's expert witness; (3) active efforts to prevent the breakup of the Indian family

HELD: There was sufficient evidence that the parents were unfit such that the termination of parental rights was warranted. The State's expert witness was a member of the children's tribe and—as a professor at an Indian Nations university—was recognized by the trial community as knowledgeable in tribal customs. It is undisputed that the State made every effort to involve the children's tribe and extended family members in order to protect the children's Indian culture. And any failure to complete reintegration tasks was caused by the parents' failures and not by a lack of support.

STATUTES: 25 U.S.C. § 1912(e), §1912(f), §1914; 25 U.S.C.A. § 1912(d), § 1912(f); K.S.A. 2016 Supp. 38-2269(a), 60-261

 

attorney and client—constitutional law
criminal law post-conviction relief
khalil-alsalaami v. state
riley district court—reversed and remanded
no. 115,184—june 17, 2017

FACTS: Jury’s conviction of Ziad Khalil-Alsalaami (Ziad) on two counts of aggravated criminal sodomy was affirmed on direct appeal. He then filed K.S.A. 60-1507 motion alleging ineffective assistance of counsel who represented him both at trial and on direct appeal. Allegations included counsel’s failure to request an interpreter at trial. District court conducted a full hearing and denied the motion. Ziad appealed. 

ISSUE: Ineffective assistance of counsel

HELD: Ziad’s allegations were reviewed in light of counsel’s overall trial strategy that DNA evidence was transferred to the victim, and that police tricked Ziad into a false confession. Under facts in this case, Ziad’s attorney was ineffective for not requesting an interpreter at trial.  Prejudice would be presumed because this implicated the basic consideration of fairness to Ziad. Other instances of ineffective assistance are further noted, including counsel’s failure to not raise the interpreter issue on direct appeal, failure to file a motion to suppress or to mount a defense at the Jackson v. Denno hearing, stipulating to the voluntariness of the confession, failing to object to prosecutor’s questions about Ziad’s conversation with his wife, failing to object to prosecutor’s misstatement of the evidence during closing argument, and failure to raise issue of prosecutorial misconduct during closing argument on direct appeal. These errors went to the heart of counsel’s defense strategy, and their cumulative effect impacted Ziad’s ability to receive a fair trial. Reversed and remanded for further proceedings. 

STATUTES: K.S.A. 2016 Supp. 21-6627(a)(1)(D), 75-452; K.S.A. 22-3215, 60-404, -1507, 75-4351, -4351(b), -4351(e)

 

Criminal: 

creditors and debtors—criminal procedure—jurisdiction—restitution sentences—statutes
state v. jamerson
shawnee district court—reversed
no. 116,413—june 17, 2017

FACTS: Jamerson was convicted and sentenced in 2001 to prison term and over $5,000 in restitution. Restitution again ordered in 2013 resentencing. Thereafter, the district court entertained a request for and entered an order of garnishment of Jamerson’s prisoner account. Jamerson appealed, claiming the district court lacked jurisdiction to enter garnishment order prior to the conclusion of Jamerson’s resentencing appeal.

ISSUES: (1) Jurisdiction, (2) restitution

HELD: Kansas criminal code does not contain statutes outlining a procedure by which a person owed restitution may seek recovery of the judgment. When restitution is ordered, it is a judgment against the defendant which can be collected by garnishment proceedings as in any civil case. Although the district court lost jurisdiction to alter or amend Jamerson’s sentence while the case was on appeal—including the amount of restitution—it had jurisdiction to enter an order of garnishment.

District court erred when it entered order allowing garnishment of Jamerson’s inmate account. A district court has discretion to order payment of restitution while a defendant is incarcerated, but it must declare that intention unambiguously. In this case, district court failed to make clear that restitution was payable immediately, thus restitution did not become due until Jamerson's release.   

STATUTES: K.S.A. 2016 Supp. 21-6604(b)(1), -6604(b)(2), 60-729(a), -731(a), -2103(d)(1); K.S.A. 2002 Supp. 21-4603d(a)(11), -4603d(b); K.S.A. 60-4301

 

criminal procedure—search and seizure
state v. lewis
sedgwick district court—reversed, sentence vacated and remanded
no. 115,285—june 17, 2017

FACTS: At the completion of a traffic stop, police had Lewis exit his car so dog sniff of car could be conducted. When the dog indicated drugs, the ensuing search resulted in the discovery of cocaine inside the center console. Lewis filed motion to suppress the evidence, contending in part the police unreasonably prolonged his traffic stop to obtain a dog sniff. District court denied the motion, finding the 21-minute stop was not excessive, and the dog’s aggressive indicator was sufficient probable cause for the search. District court also found the officer’s information from a confidential informant was sufficient to establish a reasonable suspicion that Lewis might be involved in criminal activity. Lewis was convicted on stipulated facts. On appeal, he claimed the district court erred in denying the motion to suppress, arguing in part the police unreasonably prolonged the traffic top to obtain a dog sniff. 

ISSUES: (1) Reasonable suspicion, (2) traffic stop

HELD: No support in the record for State’s argument that reasonable suspicion to extend the traffic stop was based on Lewis’ jumpiness. And under facts in this case, the confidential informant’s anonymous tip would not have allowed officers to infer a reasonable suspicion of illegal conduct.

Under the circumstances, where the traffic investigation had just been completed as the drug sniffing dog arrived, the officers unreasonably prolonged the traffic stop to conduct the dog sniff. Lewis’ conviction is reversed, his sentence is vacated, and case is remanded with directions to grant his motion to suppress.   

STATUTES: K.S.A. 21-36a06(a), -36a06(c)(1)

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