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November 6, 2015, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

DISBARMENT
IN RE JIMMIE E. ALLEN JR.
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 18,439 – NOVEMBER 5, 2015

FACTS: In a letter signed November 2, 2015, addressed to the clerk of the appellate courts, respondent Allen, an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, a hearing on a formal complaint was scheduled before the Kansas Board for Discipline of Attorneys. The formal complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence), 1.4 (2014 Kan. Ct. R. Annot. 495) (communication), 1.5 (2014 Kan. Ct. R. Annot. 515) (fees), 1.15 (2014 Kan. Ct. R. Annot. 567) (safekeeping property), 1.16 (Kan. Ct. R. Annot. 583) (terminating representation), 8.1 (2014 Kan. Ct. R. Annot. 670) (cooperation), 8.4 (2014 Kan. Ct. R. Annot. 680) (misconduct), Supreme Court Rule 207 (2014 Kan. Ct. R. Annot. 342) (cooperation), and Supreme Court Rule 208 (2014 Kan. Ct. R. Annot. 356) (registration of attorneys). The formal complaint included allegations that the respondent misappropriated client funds.

HELD: Court, having examined the files of the Office of the Disciplinary Administrator, found that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.

DISBARMENT
IN RE ALAN B. GALLAS
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 12,619 – NOVEMBER 4, 2015

FACTS: In a letter signed October 21, 2015, addressed to the clerk of the appellate courts, respondent Gallas, an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, a complaint had been docketed by the Office of the Disciplinary Administrator for investigation. The complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.15 (2014 Kan. Ct. R. Annot. 567) (safekeeping property) and 8.4(b) and (c) (2014 Kan. Ct. R. Annot. 680) (misconduct). The allegations involved conversion of client funds.

HELD: This court, having examined the files of the Office of the Disciplinary Administrator, found that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.

Kansas Supreme Court – Criminal

STATE V. LABORDE
CLAY DISTRICT COURT – REVERSED
COURT OF APPEALS – REVERSED
NO. 107,872 – NOVEMBER 6, 2015

FACTS: When Laborde and Price broke up, Price left and Laborde retained control over military gear Price left behind to pick up later. Laborde prevented Price from retrieving the property, by lying about not having the items, or lying about where the items were located. State charged Laborde with theft by deception, later amending the charge to name the United States Army as owner of the missing property. Both parties submitted jury instructions on theft by unauthorized control. On these instructions, jury convicted Laborde of felony theft. Laborde appealed, claiming insufficient evidence supported her conviction. Court of Appeals affirmed in unpublished opinion. Panel found State failed to present sufficient evidence to convict on theft by deception charge, but alternative theory of theft was available through Laborde’s invited error of unauthorized control instruction, and sufficient evidence supported Laborde’s conviction on that alternative theory. Laborde’s petition for review of sufficiency of the evidence granted.

ISSUE: Sufficiency of the evidence

HELD: Court of Appeals improperly opened door to analysis of issue not before it. Correctness of panel’s reasoning in concluding the instruction constituted invited error is not evaluated. Issue on appeal is sufficiency of the evidence supporting Laborde’s conviction on the charged crime. Panel correctly determined the evidence was insufficient to convict Laborde of theft by deception. Judgments of Court of Appeals and district court are reversed.

DISSENT (Rosen, J.): Agrees that parties did not present issue that opens door to invited-error analysis adopted by Court of Appeals. But disagrees that evidence was insufficient to sustain a conviction of theft by deception. Laborde’s deceit precluded Price from obtaining property for a time until Laborde sold or gave it away. Her denial of knowing where the missing property was, or her various claims of returning property to Price or to Army, constituted an exercise of control over the property by means of deception.

STATUTES: K.S.A. 21-3701, -3701(a)(2); and K.S.A. 22-3201(a)

STATE V. ROBINSON
JOHNSON DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED
NO. 90,196 – NOVEMBER 6, 2015

FACTS and ISSUES: Robinson convicted of aggravated kidnapping of Trouten (Count I), capital murder of Trouten and Lewicka (Counts II and III) as part of common scheme or course of conduct that included premeditated murders of Bonner, S. Faith, D. Faith, and Stasi, theft of Neufeld’s property (Count IV), first degree premeditated murder of Stasi (Count V), and aggravated interference with Stasi’s parental custody (Count VI). In sentencing phase, State raised "multiple murders” aggravating circumstance. Defense raised several mitigating circumstances. District court imposed death sentence on each capital murder conviction, and prison terms for remaining convictions. Sentencing journal entry also designated Robinson as a sex offender. Robinson’s appeal raised numerous constitutional and/or statutory challenges on issues organized by the court as challenging: (1) venue, (2) denial of motions for continuances, (3) denial of motions to suppress evidence, (4) jury selection process, (5) sufficiency of the evidence of common scheme or course of conduct, (6) multiplicitous capital murder convictions, (7) jurisdictionally deficient complaint, (8) admission of specific evidence, (9) sufficiency of evidence for Counts I and IV, (10) prosecutorial misconduct during guilt phase, (11) instructional error in guilt phase, (12) cumulative error in guilt phase, (13) juror misconduct in penalty phase, (14) sufficiency of evidence supporting aggravating circumstance, (15) prosecutorial misconduct in penalty phase, (16) challenges to penalty phase instructions, (17) sentencing under allegedly void law, (18) cumulative error in penalty phase, and (19) designation of Robinson as sex offender. State abandoned cross-appeal regarding victim impact evidence because issue was decided by State v. Scott, 286 Kan. 54 (2008).

HELD: The 397-page opinion resolves issues and subissues on extensively detailed facts of this case. Claims resolved in Robinson’s favor include multiplicitous convictions and designation as sex offender.

No abuse of discretion, statutory violations, or constitutional error in district court’s refusal to transfer venue, or in the denial of motions for continuances.

No error in the denial of motions to suppress evidence that included evidence obtained pursuant to pen registers, wiretaps, search warrants, and warrantless trash. No merit to arguments regarding jurisdiction to issue extraterritorial search warrants, officers exceeding their territorial jurisdiction, expectation of privacy in trash, and the showing of necessity for wiretap orders.

No error in challenges to jury selection process. Issues included curtailing voir dire questioning, denial of defense challenges for cause, disparate rulings on similar cause challenges, not striking small group panel exposed to inflammatory remarks, retention of panelists with alleged juror-specific bias, excusing juror opposed to death penalty, alleged prosecutorial misconduct, and lawfulness of jury selection process that identified jurors only by numbers.

Sufficient evidence supported capital murder convictions in Counts II and III. Meaning of common scheme or course of conduct in capital murder under K.S.A. 21-3439(a)(6) is examined, finding sufficient evidence for jurors to find all murders were related to one another in some way, therefore were part of a common scheme or course of conduct. Murders committed after enactment of capital murder statute were the last act or event to trigger application of common scheme or course of conduct element in capital murder statute, thus prospective application of K.S.A. 21-3439(a)(6) included pre-enactment murders.

Robinson’s capital murder convictions are multiplicitous. All murders in Counts II and III were tied by the same common scheme or course of conduct, thus constituted unitary conduct under K.S.A. 21-3439(a)(6). Count III capital murder conviction is reversed and sentence for that conviction is vacated. Murder conviction in Count V is predicate killing for the capital murder conviction, thus following Scott the Count V murder conviction is unconstitutionally multiplicitous. Count V conviction is reversed and sentence is vacated.

No merit to claim the Fourth Amended Complaint was too poorly drafted to confer jurisdiction over capital murder and aggravated interference with parental custody counts.

Court rejects challenges to trial court’s admission of evidence including emails, and alleged K.S.A. 60-455 violations.

Sufficient evidence supports aggravated kidnapping conviction in Count I. No need to address sufficiency of evidence for murder conviction in Count V which is reversed as multiplicitous.

Prosecutorial misconduct allegations during guilt phase are discussed in detail. Three isolated improper remarks during voir dire and trial are identified: exceeding scope of the evidence to suggest a child witnessed her mother’s death, and to remark that Stasi’s baby was ripped from her arms; and discussing a letter not admitted into evidence. These remarks were not gross and flagrant, or motivated by ill will, and of little weight given overwhelming evidence against Robinson. Cumulative effect of these remarks did not prejudice Robinson’s right to fair trial.

No error in not instructing jury on definition of "Common Scheme” or "Course of Conduct.” Those terms are not unconstitutionally vague. Venue instruction was erroneous, but not clear error.

Reversal of multiplicitous capital murder and first-degree murder convictions cured any prejudice. Cumulative effect of all other errors in guilt phase did not deny Robinson a fair trial.

Based on State’s concession, court presumes but does not decide that juror’s use of Bible was misconduct in this case, but error was harmless beyond a reasonable doubt.

Sufficient evidence supported State’s "multiple murders” aggravating circumstance.

Prosecutorial misconduct allegations during penalty phase are discussed in detail. Prosecutor’s remarks on Robinson crying on one occasion during trial, comment that "families of victims would not agree” with defense witness’ assessment of Robinson’s propensity toward violence in prison, and suggestion that prosecutor felt one defense argument was "insulting and astounding,” were improper but harmless error. All other allegations of prosecutorial misconduct lacked merit.

No error found in challenges to penalty phase instructions in this case. Bar is cautioned that instructions similar to Instruction No. 12 should conform with statutory language in K.S.A. 21-4624(e), to avoid error under different facts.

Sentencing schemes in Kleypas and Marsh are discussed. Court rejects novel argument, that Marsh requires death sentence imposed under invalidated Kleypas interpretation of weighing equation be vacated and replaced by life sentence with mandatory minimum.

Cumulative effect of errors found in penalty phase did not deny Robinson a fair penalty phase proceeding.

Designation of Robinson as sex offender is vacated. District judge’s sentence from bench made no findings that Robinson’s convictions were sexually motivated. Sentencing judge thus lacked jurisdiction to make this designation sua sponte in journal entry. Remanded for a corrected journal entry.

CONCURRENCE (Malone, J.): Writes separately to address majority’s holding that prosecutor’s closing argument comments on his observation of when Robinson cried and did not cry during trial was beyond scope of penalty phase and served no purpose but to inflame passion of jurors and divert their attention from sentencing. Any comment regarding demeanor of a nontestifying defendant amounts to improper closing argument, but agrees the misconduct in this case was harmless beyond a reasonable doubt.

DISSENT (Johnson, J.): Agrees with reversal of capital murder conviction under Count III, but dissents from majority’s determination that State proved capital murder, as charged in Count II. Both capital murder convictions and corresponding death sentences should be set aside. The designation of Trouten as a "principal capital murder victim" is a phantom concept, manufactured by the State's charging document and perpetuated here by the majority, but totally devoid of any legal support. No Kansas case is cited for majority’s completed-crime theory of prosecution, whereby a murder completed years earlier is subsequently utilized as an element of a capital murder that is "completed" after the fact by adding a new killing. This is a blatant example of ex post factor jurisprudence. Submits that the defendant had to kill more than one person after the enactment of the capital murder statute in order to fulfill the indispensable initial actus reus of the crime.

STATUTES: K.S.A. 2014 Supp. 21-6619(b), -6619(c)(1); K.S.A. 2014 Supp. 22-2401a; K.S.A. 2014 Supp. 60-455, -467(a); K.S.A. 20-301a, -302, -319; K.S.A. 21-3102(4), -3106, -3106(1), -3106(6), -3107(2), -3107(2)(b), -3107(2)(d), -3110(5), -3420, -3421, -3422, -3422a, -3439, -3439(a)(6). -3507, -4624(b), -4624(e), -4624(f), -4625(2), -4627(b), -4627(c)(2), -4636(b), -4652(2); K.S.A. 22-2202(1), -2202(13), -2202(14), -2305(2), -2516(3), -2527(1), -2401a, -2401a(2)(a), -2401a(2)(b), -2401a(5), -2401a(10)(a), -2502, -2502(a), -2503, -2505, -2602, -2603, -2611, -2616, -2616(1), -3201(b), -3214, -3216, -3216(1), -3401, -3407, -3408, -3410, -3410(1), -3410(2)(i), -3410(3), -3412, -3414(3), -3423(1)(c); K.S.A. 60-401(b), -401(m), -419, -441, -444, -445, -455, -464, -467, -467(a); K.S.A. 77-201 Second; K.S.A. 21-4624(e) (Furse 1995); K.S.A. 22-2401a (Ensley 1988); and K.S.A. 62-1830 (Corrick)

Kansas Court of Appeals – Civil

DIVORCE, RETIREMENT ACCOUNTS, AND DORMANCY
IN RE MARRIAGE OF LARIMORE
SEDGWICK DISTRICT COURT – AFFIRMED
NO. 112,422 – NOVEMBER 6, 2015

FACTS: Janice M. Larimore challenges the district court's refusal in 2014 to compel her former husband, David E. Larimore, to cooperate in the preparation and execution of a qualified domestic relations order (QDRO). The QDRO was necessary to execute on the division of David's retirement accounts provided in the parties' divorce decree filed almost 12 years earlier in 2002. Janice contends the district court erred when it found the judgment had become absolutely extinguished and unenforceable because she failed to execute on the judgment within seven years of the entry of the divorce decree.

ISSUES: (1) Divorce, (2) retirement accounts, and (3) dormancy

HELD: Court held that under the facts of this case, although retirement benefits were not yet payable, K.S.A. 2014 Supp. 2403(c) did not toll the running of the dormancy period for a judgment in a divorce decree that divided a party's retirement accounts governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 (2012) et seq., because the legal process for enforcing the judgment, the filing of a qualified domestic relations order, was not stayed or prohibited.

STATUTES: K.S.A. 60-254, -2403, -2404

OPEN RECORDS AND STANDING
HUNTER HEALTH CLINIC V. WICHITA STATE UNIVERSITY ET AL.
SEDGWICK DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS
NO. 111,586 – NOVEMBER 6, 2015

FACTS: The Wichita Eagle and Beacon Publishing Company Inc. (Eagle) presented a request for records to Wichita State University (WSU) under KORA. Upon learning of the request, Hunter Health Clinic (Hunter) brought a putative KORA cause of action to prevent WSU from releasing what it asserted were private Hunter records. After considering Hunter's standing under KORA to bring the lawsuit and the merits of Hunter's claims, the district court granted Hunter injunctive relief preventing WSU from disclosing what the court determined were private records relating to Hunter. The question in the case is whether a person who seeks to prevent a public agency from disclosing claimed private records have statutory standing to bring a cause of action under the Kansas Open Records Act (KORA)?

ISSUES: (1) Open records and (2) standing

HELD: Court concluded that in Kansas an injunction provides an equitable remedy to a party for a legal wrong that gives rise to a cause of action. An injunction, therefore, must be supported by a cause of action. Since Hunter did not have a cause of action under KORA, it lacked standing to obtain an injunction enforcing KORA. For the same reason, Hunter lacked standing to obtain a decision on the predicate question of whether the e-mails were part of the public record. Court did not review the district court's decision that the e-mails were not part of the public record because the matter is moot and also declined to consider the Eagle's requests to strike WSU's appellate brief and disregard it as a party based on the attorney general's entry of appearance and WSU's subsequent change in legal position in this lawsuit. Court reversed and remanded the case with directions to dismiss the petition.

STATUTES: K.S.A. 45-215, -216, -217, -218, -219, -222, -223; and K.S.A. 60-901

Kansas Court of Appeals – Criminal

STATE V. KIMBERLIN
LYON DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH DIRECTIONS
NO. 112,003 – NOVEMBER 6, 2015

FACTS: Kimberlin appeals following his convictions of aggravated battery and various drug crimes. Stated generally, Kimberlin challenges the manner in which his felony sentences were calculated, the accuracy of the court's journal entry, the propriety of a comment made by the prosecutor in closing argument, one of the instructions given to the jury, and the use of his criminal history to calculate his sentence.

ISSUES: (1) Prosecutorial misconduct, (2) sentencing, (3) jury instructions, and (4) Apprendi

HELD: Court held the district court erred in designating aggravated battery, which had a presumptive sentence of probation, as the primary crime. As a result, Kimberlin's felony sentences must be vacated and remanded for resentencing. Court found it unnecessary to address Kimberlin's alternative argument that the district court erred in imposing a prison sentence for his aggravated battery conviction. Court found the State conceded that the journal entry of judgment must be corrected because it erroneously reflects that the district court ordered the misdemeanor sentences to run consecutively, rather than concurrently. The prosecutor improperly made a plea to the jury to not let Kimberlin get away with what he did. Court held that although the evidence in this case hinged entirely on the credibility of the victim's testimony, her testimony constituted direct evidence supporting the jury's guilty verdicts. Considering the lack of prosecutorial ill will and the fleeting nature of the comment, Court concluded the State satisfied its burden to demonstrate that there was no reasonable possibility the misconduct affected the trial's outcome in light of the entire record. Court also held the trial court did not err in giving the jury a deadlocked instruction before the jury deliberations began. Court rejected the Apprendi issue.

STATUTES: K.S.A. 21-6804, -6805, -6819; K.S.A. 22-3504; and K.S.A. 60-261

STATE V. MCFETTERS
SHAWNEE DISTRICT COURT – VACATED AND REMANDED WITH DIRECTIONS
NO. 112,784 – NOVEMBER 6, 2015

FACTS: District court sentenced McFetters to 20-month prison term for drug conviction, with suspended sentence for 18 month probation. At subsequent revocation hearing, McFetters admitted to violating conditions of his probation. Probation officer testified in part that McFetters had already received a three-day intermediate sanction under K.S.A. 2014 Supp. 22-3716(c)(1)(B) for criminal trespass citation. District court revoked probation and sent McFetters to prison. McFetters appealed.

ISSUES: (1) Revocation of probation and (2) ordering a prison sentence

HELD: In light of McFetters’ stipulation to violating some conditions of probation, and nothing in record to conclude district court’s decision was arbitrary, fanciful, or unreasonable, the district court was well within its discretion to revoke McFetters’ probation.

Before imposing underlying prison sentence, district court was required to impose either 120- or 180-day sanction in K.S.A. 2014 Supp. 22-3716(c)(1)(C) or (D), unless district court’s remarks at revocation hearing were sufficient to invoke exceptions found in K.S.A. 2014 Supp. 22-3716(c)(9). Here, district court’s conclusory remarks about McFetters’ apparent unwillingness or inability to conform behavior to requirements of probation do not satisfy the particularity requirement in K.S.A. 2014 Supp. 22-3716(c)(9). Order sending McFetters to prison is vacated. Case is remanded to district court for new dispositional hearing at which district court can either impose intermediate sanction under K.S.A. 2014 Supp. 22-3716(c)(1)(C) or (D), or alternatively, set forth with particularity its reasons for invoking exceptions in K.S.A. 2014 Supp. 22-3716(c)(9) prior to ordering service of prison sentence.

STATUTES: K.S.A. 2014 Supp. 22-3716(c)(1), -3716(c)(1)(B), -3716(c)(1)(C), -3716(C)(1)(D), -3716(c)(9)

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