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August 3 and 5, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

Criminal Procedure; Jury; Sixth Amendment Right to Counsel
State v. Johnson
Wyandotte District District Court – Affirmed
No. 111,375 – August 5, 2016

FACTS: Johnson convicted of first-degree murder and aggravated burglary related to Johnson shooting open patio door to enter living room where former girlfriend (Griffin) and male murder victim (Hill) were sleeping on floor, angrily arguing with former girlfriend, and then shooting murder victim in the head. On appeal he claimed district court erred in: (1) not instructing jury on voluntary manslaughter as Johnson requested, and in not instructing jury on unintentional second-degree murder and reckless involuntary manslaughter; (2) excluding testimony that shooting happened in a high crime area; (3) denying Johnson’s latest request for continuance to allow a fourth attorney time to prepare for trial; (3) denying Johnson’s motion for new trial based on ineffective assistance of trial attorney for spending inordinate time trying to persuade Johnson to accept plea bargain rather than prepare for trial, and refusing to introduce telephone conversations between Griffin and Johnson that could question Griffin’s credibility; (4) denying a fair trial due to cumulative errors; and (5) using Johnson's prior convictions for sentencing purposes without the convictions being proven to a jury.

ISSUES: (1) jury instructions, (2) exclusion of evidence, (3) request for continuance, (4) motion for new trial, (5) cumulative error, (6) sentencing

HELD: No error in denying request for voluntary manslaughter instruction which was not factually appropriate where shooting death occurred because of Johnson’s orchestrated actions.  Johnson’s jealousy and intense emotional argument with Griffin may have provided motive for killing Hill, but it did not provide sufficient provocation for shooting to be in heat of passion.  Also, no clear error in not instructing jury on unintentional second-degree murder and involuntary manslaughter, which were not factually appropriate under facts of case.

Similarity to State v. Burnette, 300 Kan. 419 (2014), and State v. Knox, 301 Kan. 671 (2015), noted. District court did not abuse its discretion by excluding high crime evidence which had little probative value for establishing that someone other than Johnson shot Hill. No violation of Johnson’s right to present his defense.

All factors in State v. Anthony, 257 Kan. 1003 (1995), weigh in State's favor in this case, and easily support district court's denial of a continuance.

Trial preparation claim not argued in appellate brief, and is deemed abandoned. Under facts of case, defense attorney's decision not to introduce telephone recordings containing information potentially harmful to Johnson, and to address Griffin's credibility through other means, was a sound strategic decision. Even if deficient performance could be assumed, Johnson unable to show constitutional prejudice.

No errors support the cumulative error claim.

Constitutional sentencing claim is defeated by State v. Ivory, 273 Kan. 44 (2002).

STATUTES: K.S.A. 2015 Supp. 21-5103(d), -5202, -5202(c), 22-3601(b)(3), -3601(b)(4); K.S.A. 21-3107(2)(a), -3201(c), -3401(a), -3402(b), -3403(a), -3404(a), -3716, 22-3401, -3414(3), 60-401(b)

Kansas Supreme Court – Criminal

Appeals
State v. Smith
Sedgwick District District Court – Reversed and Remanded
No. 110,061 – August 5, 2016

FACTS: Smith convicted as adult in 1993 on plea of nolo contendere to first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of firearm by a minor.  Smith asserts he told defense counsel to file appeal, but counsel failed to do so after motion to modify sentence was denied. Almost 20 years later, Smith filed pro se notice of appeal and motion for out-of-time appeal, and argued the third exception in State v. Ortiz, 230 Kan. 733 (1982), applied. Kansas Supreme Court remanded to district court to rule on Smith’s motion for out-of-time appeal and an Ortiz hearing if necessary. Smith’s trial attorney died in 2009. Only evidence on remand was Smith’s testimony that he asked attorney to file an appeal, and that Smith and family made repeated attempts without success thereafter to contact the attorney about the appeal. Citing State v. Cole, (Kan.App. 2012)(unpublished), State argued Smith waived right to bring an untimely appeal by waiting so long. District court agreed and denied Smith’s motion. Smith appealed.

ISSUE: Passage of time as waiver of an Ortiz exception

HELD: Lapse of time between the defendant’s directive to counsel to file an appeal and the defendant’s attempt to use the third Ortiz exception to file an out-of-time appeal, standing alone, is not a threshold bar to the untimely appeal as a matter of law. Here, district court failed to conduct the analysis required under State v. Patton, 287 Kan. 200 (2008). Case is remanded to district court for express purpose of determining whether Smith’s testimony is credible to establish deficient performance, which would allow an out-of-time appeal under the third Ortiz exception.

STATUTES: K.S.A. 2015 Supp. 22-3601(b)(3); K.S.A. 21-4603(d)(1), 22-3608(a); K.S.A. 1992 Supp. 21-4603(4)(a)

Kansas Court of Appeals – Civil

Sovereign Immunity; Tort Claims Act
Jones v. Kansas Department of Corrections
Leavenworth District District Court – Affirmed
No. 113,270 – August 3, 2016

FACTS: Jones is a Kansas prison inmate. He previously obtained a monetary judgment in federal court against a former prison guard, but Jones was unable to collect any of the judgment and he could not locate the former guard or any of the guard's assets. In an attempt to collect on his judgment, Jones filed an action against the Kansas Department of Corrections, the guard's former employer. Jones first filed the action in federal court, where it was dismissed for lack of jurisdiction; the Eleventh Amendment to the U.S. Constitution prevents a federal court from entering a monetary judgment against a State for past conduct of the state's employees. So Jones filed his suit in state court, again attempting to collect his judgment. The claim was dismissed for lack of jurisdiction, without any elaboration. Jones appealed.

ISSUE: May a state court enter a monetary judgment against a state agency for conduct of a former state employee

HELD: Neither the Department of Corrections nor the State of Kansas were (or could have been) defendants in Jones' federal court action against the former guard—the Eleventh Amendment to the U. S. Constitution precludes this. Although this action was brought in state court, Jones still cannot prevail. Mandamus is not an appropriate vehicle for action because Jones is not trying to get a public official to perform a job task. And the Kansas Tort Claims Act does not waive sovereign immunity, even if Jones would have filed his federally-based claim in state court.

STATUTES: Eleventh Amendment to the U.S. Constitution; 42 U.S.C. § 1983 (2000); K.S.A. 75-6109, -6116(g)

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