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July 21, 2017 Digests

Posted By Administration, Tuesday, July 25, 2017

Kansas Supreme Court

 

Attorney Discipline

 

ORDER OF DISBARMENT
IN THE MATTER OF MARGO E. BURSON
NO. 10,805—JULY 19, 2017

FACTS: In a letter signed July 18, 2017, Margo E. Burson voluntarily surrendered her license to practice law in Kansas. At the time the respondent surrendered her license, a complaint was pending with the Office of the Disciplinary Administrator. The complaint alleged violations of various rules of professional conduct relating to competence, communication, and candor toward the tribunal.

HELD: The court examined the files of the Office of the Disciplinary Administrator and found that the surrender of Burson's license should be accepted and that she should be disbarred.

 

Civil

 

INDIGENTS' DEFENSE—MANDAMUS
LANDRUM V. GOERING
ORIGINAL ACTION—WRIT OF MANDAMUS GRANTED IN PART
NO. 116,447—JULY 21, 2017

FACTS: This original action in mandamus questions whether a partially indigent defendant who has retained counsel may receive funding for certain services through the State Board of Indigents' Defense Services (BIDS). Landrum has privately retained counsel, but he moved to be declared partially indigent. The district court made that declaration and provided Landrum with a copy of the preliminary hearing transcript at a reduced price. The court also approved funding for investigative services. But after the presiding judge changed, all further requests were denied; the new judge ruled that Landrum could access BIDS payments only for expenses associated with his defense through an appointed, not retained, attorney. Landrum filed a petition for writ of mandamus, and BIDS served as the primary respondent.

ISSUE: Whether BIDS is required to fund services for a partially indigent defendant who has privately retained counsel

HELD: The court has jurisdiction to consider this application for mandamus and Landrum has standing. The only attorneys specifically excluded in K.S.A. 22-4508 are public defenders. The statute considers only the financial inability of the defendant to pay for defense services and the necessity of the requested services. Therefore, a district court has a duty to conduct an ex parte hearing when an attorney, other than a public defender, asks the court to consider a defendant's request for services. The writ issued here extends only to the district court's duty to hold a hearing; the court does not dictate the outcome of that hearing, and any orders entered depend on whether Landrum shows that he cannot afford the requested services, and that those services are necessary to his defense.

STATUTE: K.S.A. 22-4503(a), -4503(c), -4503(e), -4504, -4507, -4508, -4509, -4522,  -4523, 60-801

 

ADMINISTRATIVE—STATUTORY INTERPRETATION
MIDWEST CRANE & RIGGING V. KANSAS CORPORATION COMMISSION
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS REVERSED—
DISTRICT COURT IS REVERSED
NO. 114,168—JULY 21, 2017

FACTS: Midwest Crane & Rigging (Midwest) is a contractor that provides a crane service. One of Midwest's trucks was stopped by law enforcement; during the stop, the trooper noticed that the truck did not have a license plate. In addition to a violation for failing to display a license plate, the trooper identified a possible issue with Midwest's failure to pay the federal Unified Carrier Registration Act (UCR) fee. The truck had a crane permanently attached to the chassis, and the truck only carried the tools that were necessary to operate the crane. The KCC fined Midwest $300 for failing to register and pay the UCR fee. The fine was upheld after the KCC determined that the truck was a "commercial motor vehicle." The district court affirmed the KCC, as did a majority of the Court of Appeals' panel. The Supreme Court granted review.

ISSUE: Is the crane truck a commercial motor vehicle that is principally used to transport cargo

HELD: In order to qualify as a commercial motor vehicle, the truck in question must be used principally to transport cargo. In this case, the crane and its associated tools are not cargo. Because the crane is not cargo, the truck is not a commercial motor vehicle and Midwest need not pay a fee.

STATUTES: 49 U.S.C. § 14504a(a)(1)(A)(ii), § 31101(1), § 13102(14), § 31132(1), § 14504a(a)(8), § 14504a(a)(9), § 14504(c), § 14504(e); K.S.A. 2016 Supp. 8-128(b), 66-1,115, -1,139a, 77-621(c)(4)

 

 

Criminal:

 

criminal law and procedure—evidence—prosecutors
state V. banks
sedgwick district court—affirmed
no. 114,614—july 21, 2017

FACTS: Flores was convicted of premeditated first-degree murder. On appeal he claimed:  (1) insufficient evidence supported the conviction because state’s evidence of premeditation was based upon impermissible inference stacking; (2) prosecutorial error by encouraging jury to decide case based on unreasonable inferences rather than on direct or circumstantial evidence; and (3) district court’s exclusion of photographs that depicted handwritten notes found in Flores’ car violated Banks’ right to present evidence critical to his defense.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial error, (3) admission of evidence

HELD: Flores mistakenly equates inference stacking with state’s reliance on multiple circumstances. Impermissible inference stacking is not present where different circumstances are used to support separate inferences or where multiple pieces of circumstantial evidence separately support a single inference. Under facts in this case, the state provided sufficient evidence that the killing of the victim was premeditated.

No error was found in prosecutor’s closing argument. Prosecutor may have come close to scripting the crime for the jury in more detail than the evidence justified, but the relevant inferences asserted by the prosecutor were supported by the evidence and were reasonable.

District court correctly refused to admit the unauthenticated writings. Banks made no effort to comply with authentication requirements of K.S.A. 60-464; there was no evidence as to whose handwriting appears in the photographed writings; and nothing in the content of the writings gives a clue as to who might have authored them.   

STATUTES: K.S.A. 2013 Supp. 21-5402(a)(1); K.S.A. 60-404

  

criminal procedure—evidence—statutes
state v. davey
johnson district court—affirmed; court of appeals—affirmed
no. 111,774—july 21, 2017

FACTS: Davey was convicted of attempted first-degree murder and conspiracy to commit first-degree murder of her husband. At trial, state introduced hearsay statements that were made among the conspirators. Davey appealed, claiming this evidence did not fit the coconspirator exception in K.S.A. 2016 Supp. 60-460(i)(2). Court of Appeals affirmed in an unpublished opinion. Sole issue in Davey’s petition for review was whether the co-conspirator exception to the hearsay rule is applicable where the state offers the hearsay through a co-conspirator.

ISSUES: Co-conspirator exception to the hearsay rule

HELD: The coconspirator exception to the hearsay rule, based upon K.S.A. 60-2016 Supp. 60-460(i)(2), does not require that the coconspirator’s statement be offered to the court by a third person who is not a participant in the conspiracy. The third person requirement for application of the coconspirator exception, as declared in the five-part test in State v. Bird, 238 Kan. 160 (1985), and its progeny, is disapproved and overruled. K.S.A. 2016 Supp. 60-460(i)(2) sets up just three requirements for the co-conspirator exception to the hearsay rule to apply:  (1) the out-of-court statement must have been made by one of the co-conspirators; (2) the statement of the co-conspirator must have been made while the conspiracy was in progress; and (3) the statement must be relevant to the plan or its subject matter. Substantial competent evidence supports the factual requirements for application of K.S.A. 2016 Supp. 60-460(i)(2) in this case. Trial court did not err in admitting the evidence.

STATUTES: K.S.A. 2016 Supp. 60-460(i), -460(i)(2); K.S.A. 60-404

 

district courts—criminal law and procedure—discovery—evidence
state v. pollard
sedgwick district court—affirmed
no. 114,005—july 21, 2017

FACTS: Jury convicted Pollard of first-degree felony murder and aggravated robbery. Prior to trial, Pollard filed pro se motion seeking to compel state’s production of certain evidence. County clerk’s response stated that no hearings were scheduled and no further action would be taken absent further direction from Pollard’s appointed defense counsel as to how to proceed. During trial, district court ruled that Pollard’s gang status was admissible to enable state to explain how Pollard became a suspect. On appeal, Pollard claimed the prosecutor erred by introducing gang affiliation evidence. He also claimed the Sedgwick County clerk’s method of dealing with pro se motions in criminal cases violated his due process rights.

ISSUES: (1) Prosecutorial error, (2) pro se motion for discovery

HELD: Prosecutor did not mislead the trial judge about the grounds for admitting gang affiliation evidence. Pollard’s identity was a central issue in the case, and law enforcement used the department’s gang database in the process of connecting Pollard to the crimes. No merit was found in any of Pollard’s related claims of error by the prosecutor and trial court.

Pollard’s challenge as to how the county clerk’s office handles pro se motions in other cases cannot be brought in Pollard’s direct appeal, and there is no support in the record for Pollard’s challenge to the clerk’s handling of his motion. Pollard also failed to establish that he was in any way prejudiced by having his motion referred to appointed defense counsel rather than heard on its own. Under facts in this case, Pollard was not denied meaningful access to the court.

STATUTES: K.S.A. 2016 Supp. 60-455; K.S.A. 60-402(b)

 

 

Kansas Court of Appeals


 

constitutional law—criminal law—jury instructions—prosecutors—statutes
State v. Taylor
johnson district court—reversed, sentences vacated
no. 114,779—july 21, 2017

FACTS: Taylor was arrested for driving on a suspended license. Search of car discovered a gun stolen more than a year earlier. Marijuana found in Taylor’s shoe during his booking at the county jail. Jury convicted Taylor of theft, possession of marijuana, trafficking contraband in a correctional facility, and driving with a suspended license. Taylor appealed, arguing prosecutor and court erred in telling jury that the theft statute made possession of a stolen gun enough for a theft conviction, and that insufficient evidence supported his conviction on this charge. He also argued he was unconstitutionally denied notice that marijuana was contraband such that he could be separately convicted on the trafficking charge, and that insufficient evidence supported that conviction.

ISSUES: (1) Theft statute, (2) prosecutorial error, (3) sufficiency of the evidence of theft, (4) constitutional application of trafficking in contraband statute

HELD: Nothing within the plain language of the theft statute provides that persons found to be in possession of stolen firearms are guilty of theft regardless of whether they had knowledge the firearms they possessed were stolen. Under no circumstances is the state relieved of its duty of establishing the defendant acted with the intent to commit theft.

By telling the jury that it is the legislature’s desire to convict persons who possess stolen firearms of theft regardless of whether those persons had knowledge the firearms were stolen, the prosecutor seriously misstated the law and erroneously conveyed to the jury that the prosecutor is the final arbiter of the legislature’s intent. Under facts in this case, the prosecutor’s error was prejudicial.

There was insufficient evidence that Taylor intended to permanently deprive the owner of the handgun. A theft conviction based solely upon possession of stolen property must be supported by sufficient evidence that the person provided unsatisfactory explanations for possessing the stolen property, and that the property they possessed had been recently stolen. Here, the gun found in Taylor’s possession some 14 to 20 months after it was reported stolen was too remote in time to be considered recently stolen. Taylor’s theft conviction was reversed and sentence was vacated without possibility of retrial.

The trafficking in contraband statute was unconstitutionally applied to Taylor. State v. Watson, 273 Kan. 426 (2002), makes clear that the statute can prohibit the introduction or attempted introduction of contraband only if the correctional institution’s administrator has given notice of what items constitute contraband. Controlled substances are not per se contraband under the statute. Under facts in this case, the jail administrator had not identified marijuana as contraband, thus Taylor was denied the notice to which he was entitled. Accordingly, insufficient evidence supported his trafficking in contraband conviction which was reversed and the sentence vacated. Error in trial court’s instructions were also noted.

STATUTES: K.S.A. 2016 Supp. 21-5202, -5203, -5701, -5801(a), , -5801(a)(1)-(a)(4), -5801(b)(1), -5801(b)(7), -5801(h), -5904, -5904(a), -5904(b), -5904(b)(2)(A)-(D), -5914(d)(1), -5914(d)(16), 50-1201 et seq., 65-4105(d)(16), 75-7c01 et seq.; K.S.A. 2014 Supp. 8-262, 21-5706(b)(3), -5801(a), -5914; K.S.A. 2001 Supp. 21-3826; K.S.A. 21-3826(c)(1), -5801

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