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September 15, 2017 Digests

Posted By Administration, Tuesday, September 19, 2017
Updated: Monday, September 18, 2017

Kansas Supreme Court

 

 

Attorney Discipline

 

ORDER OF DISBARMENT
IN THE MATTER OF ELDON L. BOISSEAU
NO. 8,022—SEPTEMBER 13, 2017

FACTS: In a letter dated August 31, 2017, Eldon L. Boisseau, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. A complaint was pending at the time of surrender; the complaint alleged that Boisseau violated Kansas Rules of Professional Conduct by having been convicted of attempting to evade or defeat tax.

HELD: The court found that the surrender should be accepted and that Boisseau should be disbarred.

 

Criminal 

 

APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—STATUTES
STATE V. BROWN
SEDGWICK DISTRICT COURT—AFFIRMED
No. 11,2782—SEPTEMBER 15, 2017

FACTS: In a consolidated trial, Brown was convicted of offenses including felony murders of Tampone and Rhone, each with an underlying felony of aggravated robbery. On appeal, he claimed his statements to the police should have been suppressed because detective misinformed him of Miranda right to counsel. He next claimed insufficient evidence supported his conviction for felony murders. Third, he claimed reversible errors in district court’s instructions to the jury, citing: a narrowed instruction for felony murder as not matching the information; an attempted aggravated robbery instruction that broadened the crime charged; an instruction defining “intent to aid and abet attempted aggravated robbery” as unconstitutionally vague; and an instruction defining “reckless” criminal discharge of a firearm as being irrational.

ISSUES: (1) Miranda warnings, (2) sufficiency of the evidence, (3) jury instructions

HELD:  Pursuant to Duckworth v. Eagan, 492 U.S. 195 (1989), and under facts in this case, the detective informing Brown that an attorney would be appointed for him “if he was charged” did not render the Miranda warnings constitutionally inadequate because in their totality, the warnings reasonably conveyed to Brown his rights as required by Miranda. Brown’s claim for first time on appeal that his interrogation was tainted by unnecessary delay between his arrest and his first appearance, is not considered.

Jury heard sufficient evidence to reasonably conclude that Brown knowingly took a cell phone and Cadillac from the presence of Tampone by using lethal force, and that Brown’s associates orchestrated the robbery and fired the shots killing Rhone with Brown’s help as the wheelman.

The jury instructions were not clearly erroneous. Pursuant to State v. Brown, 299 Kan. 1021 (2014), overruled on other grounds by State v. Dunn, 304 Kan. (2016), district court’s narrowing of the instructions for felony murder was legally and factually appropriate. If discrepancy in the attempted aggravated robbery instruction was even error, it was not reversible error.  Brown invited any error in the instruction defining “intent.” And the instruction defining “reckless” comported with statutory definition of that term and the corresponding pattern instruction. 

STATUTES:  K.S.A. 2016 Supp. 21-5301(a); K.S.A. 2012 Supp. 21-5202(h), -5210(a), -5420, -5420(a)(2), -5420(b), -5420(c)(1)(D), -5420(i), 22-3414(3); K.S.A. 22-2901, -3203, -3601(b)(3)

 

 

Kansas Court of Appeals

 

 

Civil

 

DEBTOR AND CREDITOR—LIENS—TRUSTS
CHANEY V. ARMITAGE
MONTGOMERY DISTRICT COURT—AFFIRMED
NO. 115,977—SEPTEMBER 15, 2017
PREVIOUSLY FILED AS AN UNPUBLISHED OPINION

FACTS: Armitage created a trust that would hold certain assets, including real estate that he designated as a homestead. After that time, the district court entered judgment in Chaney's favor against Armitage. Armitage's health failed, and he moved to a care facility, which prompted Chaney to file an application for writ of special execution against Armitage's homestead. The district court issued the writ and directed the sheriff to levy execution. Armitage later died with no family living at the homestead. His heirs moved to set aside the writ of special execution claiming that no judgment lien could ever attach to Armitage's homestead. The district court denied the motion, finding that because there was no spouse or children living at the property after Armitage's death, the assets were subject to summary execution. The heirs appealed.

ISSUE: Whether a writ of special execution can ever attach to homestead property, even after the death of the homestead owner

HELD: The homestead designation on Armitage's property expired at his death because it was not occupied by his children or spouse. Because it no longer had a homestead exemption, the residence became trust property and, under the terms of the trust, was to be used to pay the estate's debts and expenses.

STATUTES: K.S.A. 2016 Supp. 60-2301; K.S.A. 58a-505(a)(1), -505(a)(3), 59-401, 60-2202(a)

 

EMPLOYMENT—INSURANCE—WORKERS COMPENSATION
HENSON V. DAVIS
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 112,292—SEPTEMBER 18, 2017
PREVIOUSLY FILED AS AN UNPUBLISHED OPINION

FACTS: Henson was badly injured at work. Coworkers attempted to take him to the hospital, but a manager for the employer—Belger Cartage—redirected Henson to a clinic. A doctor at that clinic treated Henson for several days before returning Henson to work. A later physician discovered the severity of Henson's injuries. He eventually underwent surgery and was unable to return to work. Henson later recovered damages from a medical malpractice action that he brought against the first physician who misdiagnosed him. The damages included costs not available in a workers compensation action, but did not include any damages for future medical expenses. After the jury returned its verdict in the malpractice action, Belger Cartage asked for a lien against the verdict for payments it had already made to Henson. The district court paid some reimbursement to Belger Cartage but denied its request for a credit against any future medical expenses. Belger Cartage appealed.

ISSUE: Is Belger Cartage entitled to a credit against potential future medical expenses

HELD: Because the malpractice verdict did not contain any provision for future medical expenses, Belger Cartage is not entitled to any credit.

STATUTE: K.S.A. 44-504(b)

 

EMPLOYMENT—STATUTES
MULLEN V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
RENO DISTRICT COURT—AFFIRMED
NO. 115,682—SEPTEMBER 15, 2017
PREVIOUSLY FILED AS AN UNPUBLISHED OPINION

FACTS: Mullen sustained a workplace injury and was unable to work for 2 years. He was terminated in April 2013 and filed for unemployment compensation. That claim was denied on grounds that he did not file for benefits within 4 weeks of being released to return to work. An appeals referee affirmed on grounds that Mullen failed to file his claim within 24 months of the injury. After Mullen filed a petition for judicial review, the district court affirmed on the same grounds. Mullen appealed.

ISSUE: Is K.S.A. 2016 Supp. 44-705(g)(2) ambiguous when applied to claimants that remain employed more than 24 months following a qualifying injury

HELD: The language of K.S.A. 2016 Supp. 44-705(g) is clear and unambiguous. Because Mullen did not file an unemployment claim within 24 months of sustaining a qualifying injury, he cannot qualify for an alternative base period. While the outcome may not be fair, the statute must be read as written.

STATUTES: K.S.A. 2016 Supp. 44-702, -703(b), -703(d), -703(h)(h), -705(e), -705(g)(2), -706(a), -709(i), 77-621(a)(1), -621(c)

 

 

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