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July 27, 2018 Digests

Posted By Administration, Monday, July 30, 2018

Kansas Supreme Court



 No. 115,434—JULY 27, 2018

FACTS: The Mary Louise Falen-Olsen Trust entered a contract to sell 200 acres of real property to Sammy Dean. The Trust owned all of the surface rights plus an undivided one-half mineral interest. It is undisputed that the Trust intended to sell the surface rights and retain the mineral interest. RCAT was the closing agent and title insurer. The deed prepared by RCAT did not include any reference to the mineral reservation. Neither of the co-trustees noticed this omission before they signed and filed the deed. LCL purchased the property in April 2014. At the time, LCL acknowledged that the mineral rights would not come with the property. RCAT again acted as the closing agent, and the deed again did not note the Trust's mineral rights reservation. After the sale closed, LCL inquired about the difference between the deed's language and its understanding of what it purchased. RCAT conducted a title search and discovered that none of the deeds included the reservation of the Trust's mineral interest. LCL refused to sign a corrected deed. The Trust first learned of this in August 2014, when royalty payments were suspended. LCL filed a petition to quiet title to the mineral interests. The Falens both filed an answer denying LCL's ownership and filed a third-party petition against RCAT for negligence and breach of contract. RCAT moved for summary judgment, claiming that the statute of limitations began to run in January 2008, when the original deed was prepared. The district court granted that motion, but that decision was reversed by the court of appeals, which found that the Falens did not sustain any damage until August 2014, when the royalty payments stopped. RCAT's petition for review was granted.

ISSUES: (1) Negligence cause of action; (2) breach of fiduciary duty cause of action

HELD: In the context of a statute of limitations, "substantial injury" means "actionable injury". There are two inquiries relevant to determining when the statute of limitations began to run – when did the Falens suffer actionable injury, and when did the existence of that injury become reasonably ascertainable? They were injured when the 2008 deed was filed because their mineral interest title became clouded. This injury was compounded in 2013, when their ability to reform the title became much more limited. But there remains a genuine issue of material fact about whether the Falens reviewed or understood the deed before signing and filing it. And factual questions remain about the Falens' continued receipt of royalty payments. Because of these factual disputes, summary judgment was inappropriate and the case must be remanded for further factfinding. The Falens' breach of fiduciary duty claims extended to the 2014 deed, meaning that the petition was filed well within the statute of limitations.

STATUTE: K.S.A. 58-2222, 60-511(5), -513(a)(4), -513(b)


NO. 117,167—JULY 27, 2018

FACTS: Clay Snyder was charged with several off-grid felonies in 2012. He was found not competent to stand trial because of an intellectual disability in 2013; Snyder has microcephaly. That finding has renewed on multiple occasions, most recently in 2016. Snyder was involuntarily committed for the first time in 2014. Medical personnel have testified that it is unlikely that Snyder will ever be competent to stand trial. Snyder petitioned for original habeas relief, asking that he be released from confinement because of violations to his speedy trial, due process, and equal protection rights.

ISSUES: (1) Speedy trial; (2) due process; (3) equal protection

HELD: The speedy trial clock for Snyder's criminal trial remains suspended because Snyder is not competent to stand trial. Although Snyder maintains the right to a speedy trial, he cannot be constitutionally tried until he is competent. The competency statutes in Kansas provide deadlines that suggest a reasonable time to attempt to restore a defendant's competency. The state complied, and then used a lawful civil commitment procedure to justify his continued restraint. Compliance with statutory procedures must be strict, and delay could serve as the basis for a constitutional claim. Snyder's equal protection argument was not adequately briefed and is thus deemed abandoned.

STATUTE: K.S.A. 2017 Supp. 22-3302(4), -3303, -3303(1), 60-1501


NO. 117,512—JULY 27, 2018

FACTS: In 2012, Snyder was charged with multiple sex offenses. He asked a judge to determine his competency to stand trial. He was found not competent, and those findings have persisted. In 2016, the district court found that Snyder was not competent and that there was no substantial probability that he would obtain competency in the foreseeable future. Consequently, the Kansas Department of Aging and Disability Services commenced involuntary commitment proceedings against Snyder. The district court held a bench trial and heard evidence that Snyder was intellectually disabled and dangerous to others, which warranted further treatment. The district court determined that Snyder met the criteria for involuntary commitment, and he appealed. The case was transferred to the Kansas Supreme Court on its own motion.

ISSUES: (1) Equal protection; (2) due process; (3) sufficiency

HELD: The Care and Treatment Act provides for the involuntary commitment of certain mentally ill persons. It excludes from civil commitment a mentally ill person who is diagnosed solely with an intellectual disability. But a person with an intellectual disability may be involuntarily committed if that person has been accused of an off-grid felony and found incompetent to stand trial. The state has a rational basis to treat potentially dangerous individuals differently, negating Snyder's equal protection argument. Snyder was given due process because the state was required to prove not only that he was charged with an off-grid felony but that he was likely to cause harm to self and others. There is no constitutional bar to the state civilly committing an individual whose mental condition cannot be cured. There was sufficient evidence presented to show that Snyder is likely to cause harm to himself or to others.

STATUTE: K.S.A. 2017 Supp. 22-3303, -3303(1), 59-2946(e), -2946(f)(1), -2946(f)(3), -2966(a)




NO. 116,954—JULY 27, 2018

FACTS: In 2015, the Prairie Village Police Department arranged for controlled drug buys in Shawnee, Kansas. On two occasions, a confidential informant was sent to buy drugs from J.O. in Shawnee. There were no Shawnee officers present at either buy and the Shawnee Police Department never provided assistance. After the buys, J.O. was charged with multiple drug offenses. J.O. moved to suppress all evidence obtained from the controlled buys on grounds that PVPD had no jurisdiction to operate in Shawnee. The district court agreed that PVPD exceeded its jurisdiction by operating in Shawnee. But the motion to suppress was denied because J.O. had a voluntary encounter with the CI and was neither searched nor seized by PVPD officers. The district court admonished the PVPD to respect its jurisdictional boundaries and warned of potential recriminations if those boundaries were not followed. J.O. appealed, and the court of appeals agreed with the district court that the exclusionary rule was not an appropriate remedy for this case. The petition for review was granted.

ISSUE: (1) Application of exclusionary rule

HELD: Statutory limits exist to protect the local autonomy of neighboring cities and not to protect citizens from encroachment by law enforcement. The court of appeals erred when it found that the PVPD properly requested assistance. The PVPD's continued failure to follow K.S.A. 2017 Supp. 22-2401a is troubling. But in the absence of an individual right, J.O. cannot claim any injury that would justify suppression.

STATUTES: K.S.A. 2017 Supp. 22-2401a(2); K.S.A. 2016 Supp. 22-2401a; K.S.A. 22-3216


constitutional law—criminal law—traffic stop
state v. glover
douglas district court—affirmed
court of appeals—reversed
No. 116,446 - july 27, 2018

FACTS: Officer stopped a vehicle assuming the driver was the registered owner (Glover) whose driver’s license had been revoked. No other information supported this assumption, and the officer did not try to confirm the driver’s identity before initiating the traffic stop. Glover was in fact the driver. State charged him with driving as a habitual violator. He filed motion to suppress evidence obtained during the stop, arguing the officer lacked a reasonable suspicion of illegal activity when he stopped the car. District court granted the motion on stipulated facts, finding the officer’s assumption was unreasonable. State filed interlocutory appeal. Court of Appeals reversed, 54 Kan. App.2d 377 (2017). Review granted. 

ISSUE: Reasonable suspicion for vehicle stop

HELD: Officer lacked an articulable and reasonable suspicion that the unidentified driver did not have a valid driver’s license. Officer’s assumption was only a hunch unsupported by a particularized and objective belief. Opinion reviews general principles about reasonable searches and seizures, the distinction between assumptions and inferences, and reasons for rejecting the owner-is-the-driver presumption. State has burden to prove the officer had reasonable suspicion that the driver of the vehicle—not just the registered owner—had a suspended driver’s license. To draw inferences in favor of the State based on lack of evidence in the record impermissibly relieves State of its burden. Court of appeals is reversed. District court’s judgment is affirmed. 

STATUTE: K.S.A. 20-3018(b)


competency—criminal procedure—evidence—juries
state v. Jenkins
saline district court—affirmed
No. 106,741—july 27, 2018

FACTS: Jenkins, Parker, and two others burglarized two apartments and killed one resident.  Jenkins was convicted of first-degree murder, aggravated burglary, and theft. For threats and actions thereafter against his wife and son, Jenkins also was convicted of criminal threat, domestic battery, and criminal restraint. Jenkins appealed. Some nine months later, prosecutor reported that a juror sent her gifts which the prosecutor returned, and some two months later the same juror sent the prosecutor a holiday greeting. District court conducted a hearing each time, finding no juror misconduct had influenced the jury’s verdict. Jenkins also sought resolution of his pretrial motion for a competency hearing. Case was remanded to district court which found a retrospective competency determination was feasible and that Jenkins had been competent at time of his trial. On appeal Jenkins claimed: (1) insufficient evidence supported his convictions of first-degree murder, aggravated burglary, and theft; (2) district court erred in finding no evidence of juror misconduct; and (3) district court erred in concluding a retrospective competency hearing was feasible. 

ISSUES: (1) Sufficiency of the evidence, (2) juror misconduct, (3) retrospective competency hearing

HELD: Under facts of case, the evidence viewed in light most favorable to the State was sufficient to establish that Jenkins aided or abetted others in committing the aggravated burglaries and theft, and that Parker shot and killed the fatality victim during the aggravated burglary of that victim’s apartment. 

            No abuse of district court’s discretion in finding no juror misconduct had occurred.  Juror did not contact prosecutor until well after trial had ended, and juror had based his verdict on the evidence. No need to consider whether the alleged juror misconduct created a fundamental failure in the proceeding.

            Factors in McGregor v. Gibson, 248 F.3d 946 (10th Cir.2001), are applied to determine if it is feasible to retrospectively determine a defendant’s competency. Here, three McGregor factors are discussed with factual comparison to State v. Ford, 302 Kan. 455 (2015), and State v. Murray, 302 Kan. 478 (2015). All three factors support the district court’s ruling that a retrospective competency determination on Jenkins’ competency at the time of trial was feasible. 

STATUTES: K.S.A. 2017 Supp. 21-5402(a), -5402(c)(1)(J), -5801, -5807(b); K.S.A. 21-3205, 22-3302


appellate procedure—constitutional law—criminal law—search and seizure
state v. ton
johnson district court—affirmed
court of appeals—affirmed
No. 113,220—july 27, 2018

FACTS:  Using a confidential informant tip, supporting information, and drug dog alert, officer obtained search warrants to open a UPS package and to search a residence once the resealed  package was delivered hours after the scheduled delivery time. Marijuana discovered in the package and the residence led to Ton’s conviction for possession of marijuana with intent to sell and failure to pay Kansas drug tax stamp. Ton filed motion to suppress, arguing the officers lacked a reasonable suspicion to detain the package past the scheduled delivery time.  District court denied the motion, finding the package was not seized until police removed it from the UPS facility after the scheduled delivery time, and there was reasonable suspicion to seize the package. Ton appealed the reasonable suspicion ruling, and also argued the package was detained for an unreasonable length of time. Court of appeals affirmed in unpublished opinion, concluding the police had reasonable suspicion of criminal activity that justified seizing Ton’s package, and did not reach question of whether reasonable suspicion was required or not. Panel declined to address Ton’s unreasonable-length-of-time claim which was presented for first time on appeal. Ton’s petition for review granted.

ISSUES: (1) Reasonable suspicion, (2) preservation of length of time issue

HELD: No error found in panel’s analysis. Government had reasonable suspicion to seize the package, whether reasonable suspicion was needed or not.
            Ton affirmatively narrowed the scope of his Fourth Amendment claim in the suppression hearing to an argument that reasonable suspicion did not support seizure of the package. Record on appeal thus lacks findings Ton needs to support argument about the detention being an unreasonable amount of time. Panel’s decision to not address the merits of this additional argument is upheld.  



Kansas Court of Appeals


NO. 117,704—JULY 27, 2018

FACTS: Calhoun was convicted of multiple high-level felonies. The jury was instructed that it could convict Calhoun if it believed Calhoun was either the principal or an aider or abettor. The jury instruction on aiding and abetting allowed the jury to find Calhoun guilty if it believed that the crimes were a "reasonably foreseeable" consequence of the intended crime. At trial, Calhoun admitted that he participated in the robbery but denied committing any of the violent crimes with which he was charged. After Calhoun was convicted of some, but not all, of the charges he faced, two jurors came forward with reports of a compromise verdict. Calhoun's motion for a new trial was denied. Calhoun's convictions were affirmed on direct appeal and his petition for review was denied. Calhoun then filed a timely K.S.A. 60-1507 motion which argued, in part, that both trial and appellate counsel were ineffective for failing to argue that the jury instruction on aiding and abetting was inappropriate. The motion was denied and this appeal followed.

ISSUES: (1) Trial errors; (2) aiding and abetting jury instruction

HELD: K.S.A. 60-1507 can be used to correct trial errors only if exceptional circumstances exist. Calhoun never argued the existence of exceptional circumstances, and the court will not consider allegations of trial error in this proceeding. The aiding and abetting instruction given to the jury allowed for a guilty finding if the jury believed that any of the crimes with which Calhoun was charged were reasonably foreseeable consequences of the intended crime of aggravated robbery. Supreme Court precedent establishes that this jury instruction is not appropriate for defendants, such as Calhoun, charged with specific intent crimes. Trial counsel was ineffective for failing to object to this instruction, and appellate counsel was ineffective for failing to raise this issue on direct appeal. The jurors' comments about their confusion shows that the jury was improperly influenced by the inappropriate instruction. For this reason, Calhoun's convictions for aggravated kidnapping, attempted voluntary manslaughter, and criminal threat are reversed based on ineffective assistance of counsel.

STATUTE: K.S.A. 21-3205, 60-1507 

Tags:  intent  police powers  search and seizures  trial errors 

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