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February 13, 2015, Appellate Court Digests
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Kansas Supreme Court – Criminal



NO. 108,944 – FEBRUARY 13, 2015


FACTS: Thirteen-year-old Andrade died from gunshot wounds suffered as he opened the door of his family's home. The state charged four men with crimes related to Miguel’s death. One of those men, Betancourt, brings this appeal after a jury convicted him of premeditated first-degree murder and criminal discharge of a firearm at an occupied building. He raises five issues related to (1) the admission of his statements to law enforcement officers, (2) the admission of certain hearsay statements, (3) the trial court’s failure to give an instruction on eyewitness testimony, (4) sufficiency of the evidence, and (5) allegations of ineffective assistance of trial counsel.


ISSUES: (1) Motion to suppress, (2) eyewitness jury instruction, (3) sufficiency of the evidence, and (4) ineffective assistance of counsel


HELD: Court held that because Betancourt failed to establish that he requested the assistance of counsel during his interrogation, he failed to establish that he was denied his statutory or constitutional right to counsel during the interview. Court rejected Betancourt's argument that the trial court erred in admitting hearsay statements under the co-conspirator's statement exception in K.S.A. 60-460(i)(2) and there was sufficient evidence to establish the statements were made while the conspiracy was in progress. Court held the eyewitness identification was not crucial to the state's case because Betancourt admitted to being present and therefore the failure to give it was not clearly erroneous. Court held there was sufficient evidence presented to the jury to prove premeditation and the intent to kill. Court lastly held substantial evidence supported the trial court's finding that trial counsel was ineffective because she failed to sufficiently communicate with Betancourt or that counsel was deficient in failing to consult as expert or present expert testimony regarding the effects of cocaine and alcohol.


STATUTES: K.S.A. 22-3414, -4503, -4704; and K.S.A. 60-404, -460(i)(2)

Kansas Court of Appeals – Criminal



NO. 111,143 – FEBRUARY 13, 2015


FACTS: Prior to trial on various felony charges, Evans filed motion to dismiss charges for criminal possession of firearm and for possession of marijuana after a prior conviction. Citing State v. Pollard, 273 Kan. 706 (2002), Evans argued his successful completion of probation on prior Missouri offenses in which he had entered guilty pleas and received suspended sentences did not constitute convictions under Missouri law. District court agreed and dismissed pending charges for which a predicate offense had not been established. State appealed.


ISSUES: Prior convictions for predicate offenses


HELD: Pollard made clear that Kansas law controls the determination of what constitutes a conviction for predicate offenses. Kansas statutes clearly define a conviction as including a proceeding where a defendant pleads guilty and is found guilty by a tribunal as a result of the plea even if a sentence has not yet been imposed. District court erred in using Missouri law in determining whether Evans’ crimes in Missouri constituted convictions in this case. Reversed and remanded.


STATUTES: K.S.A. 2013 Supp. 21-5111(d), -5706, -5706(b), -5706(b)(4), -5706(c)(2)(A), -5706(c)(2)(B), -5304, -6304(a)(1), -6811(e); K.S.A. 2013 Supp. 65-4105(d)(16); K.S.A. 21-3110(4); K.S.A. 79-5208; and K.S.A. 2001 Supp. 21-4204(a)(3)

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