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August 17, 2018 Digests

Posted By Administration, Tuesday, August 21, 2018

Kansas Supreme Court


criminal procedure—statutes—witnesses
state v. brosseit
franklin district court—affirmed
court of appeals—affirmed
No. 114,753—august 17, 2018

FACTS: Brosseit was convicted of DUI. At trial, State sought endorsement of a person not identified in the complaint as a potential witness—the EMS paramedic (Harris) who drew Brosseit’s blood sample. District court allowed the late endorsement. Brosseit appealed, claiming in part that K.S.A. 22-3201(g) requires the State to endorse all known witnesses when it files the complaint, and only permits endorsement after that time if the State was unaware of the witness when it filed the complaint. State argued this claim was not preserved in district court. Court of appeals affirmed in unpublished opinion without addressing preservation. Review granted on this claim and argument that K.S.A. 22-3201(g) had been wrongly interpreted.

ISSUES: (1) Preservation of issue for appellate review, (2) late endorsement of a witness

HELD:  As in State v. Gray, 306 Kan. 1287 (2017), State failed to cross-petition for review of Court of Appeals conclusion or lack thereof regarding preservation. Nor did the State submit a response to the petition for review. The preservation issue thus is not before the Kansas Supreme Court.

In light of ambiguity in the statute and the legislature’s more than century-long acquiescence, the doctrine of stare decisis is followed. Kansas Supreme Court cases interpreting K.S.A. 22-3201(g) and its predecessors are upheld. To show reversible error on appeal, the defendant must have objected to the late endorsement, requested a continuance, and been denied that continuance. In this case, Brosseit did not request a continuance. Court of appeals is affirmed.

CONCURRENCE (Rosen, J., joined by Johnson and Stegall, JJ.): Concurs in the result only. Does not agree with majority’s interpretation of K.S.A. 22-3201(g). On plain language of the statute, the long-standing interpretation of K.S.A. 22-3201(g) is incorrect. Would hold that if the State wishes to endorse a witness after it has filed its complaint, then the State has a duty to show that it was unaware of the witness at the time of filing. The district court erred in allowing State to endorse Harris on the day of trial, but under facts in the case the error was harmless.

STATUTE: K.S.A. 2013 Supp. 8-1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 22-3201(g)

appeals—criminal procedure—criminal law—evidence—statutes
state v. campbell
sedgwick district court—affirmed
no. 116,430—august 17, 2018

FACTS: Jury convicted Campbell of first-degree premeditated murder of his wife. On appeal, Campbell first claimed the State improperly rehabilitated a jailhouse informant by introducing testimony of former prosecutor (Morehead) regarding past instances when the informant was credible, but State contends defense counsel failed to preserve this argument with an appropriate objection. Second; he claimed district court erred by admitting testimony of a witness who described Campbell as controlling of his wife. Campbell contends this evidence was inadmissible under K.S.A. 2017 Supp. 60-455 because it did not constitute evidence of a “crime or civil wrong,” but State counters this evidence of marital discord was properly admitted through K.S.A. 60-455. Third; he claimed the jury should have been instructed on a heat-of-passion voluntary manslaughter based on Campbell’s sudden quarrel with his wife. And fourth; he claimed cumulative error denied him a fair trial.

ISSUES: (1) Appellate review of Witness Rehabilitation claim, (2) evidence of marital discord, (3) voluntary manslaughter jury instruction, (4) cumulative error

HELD: Campbell objected to Morehead’s testimony on grounds of hearsay and of bolstering or vouching for the informant’s credibility. He now asserts for first time on appeal the more salient objection that Morehead’s proposed testimony would violate the specific instances rule. This newly asserted challenge on appeal is not considered.

District court properly admitted testimony describing Campbell as controlling of his wife. Prior caselaw on marital discord evidence is reviewed, with modification to the holding in State v. Gunby, 282 Kan.39 (2006). Evidence of discord in a marital relationship that does not amount to a crime or civil wrong is not subject to the limitations of K.S.A. 2017 Supp. 60-455. Under facts in this case, the evidence of discord was not subject to K.S.A. 2017 Supp. 60-455. District court’s admission of this evidence is affirmed.

An instruction for heat-of-passion voluntary manslaughter, which would have been legally appropriate, was not factually appropriate in this case.

Cumulative error doctrine not applicable where no error has been found.  

DISSENT (Johnson, J.): Disagrees that the defense objection to Morehead testifying was not preserved for appeal. District court’s error in allowing the testimony was not the result of a misunderstanding as to the reasons the defense objected to the testimony. Would address the issue, find in favor of the defendant, reverse the conviction, and remand for a new trial.

STATUTES: K.S.A. 2017 Supp. 21-5404, 22-3601(b)(3), 60-455; K.S.A. 60-404, -422, -455


criminal procedure—probation—sentencing
state v. horton
leavenworth district court—affirmed
court of appeals—affirmed
no. 115,051—august 17, 2018 

FACTS: Horton was convicted of residential burglary and felony theft. At a November 1998 sentencing, probation was ordered with understanding that the first part of probation would be served in jail because Horton had other charges pending. District court granted State’s December 1998 motion to revoke probation based on Horton’s failure to report. In 2015, Horton filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing the district court erred in revoking probation because it was impossible for Horton to report as required when he was incarcerated for other offenses. District court summarily dismissed the motion. Horton appealed. Court of appeals affirmed in unpublished opinion. Horton’s petition for review granted.

ISSUE: Motion to correct an illegal sentence - probation revocation

HELD: The two-step probation revocation process is analogous to the conviction and sentencing process. A probation violator cannot use K.S.A. 22-3504 to collaterally attack the district court’s guilty determination at a probation violation hearing. A revoked probationer must directly attack the factual determination that a probation violation occurred. District court’s summary dismissal of Horton’s claim is affirmed.

STATUTE: K.S.A. 22-3504, -3504(1), -3716, -3716(b)


appeals—criminal procedure—evidence—judges
state v. smith
sedgwick district court—reversed and remanded
no. 116,968—august 17, 2018

FACTS: Smith convicted in 1993 of first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. Twenty years later, he filed a pro se motion to file a direct appeal out of time, claiming his defense counsel never acted on Smith’s request to file an appeal. Kansas Supreme Court remanded to district court for an Ortiz  hearing to determine if Smith was eligible to appeal out of time. District court denied the motion, making no findings but referencing Smith’s failure to do anything for all the years. Holding the length of time is a factor but not a threshold bar, Kansas Supreme Court remanded to district court to determine credibility of Smith’s testimony that he repeatedly tried throughout 1993 and 1994 to tell his attorney to file an appeal. State v. Smith, 304 Kan. 916 (2016). Second Ortiz hearing held before a different judge who denied the motion to appeal out of time, finding Smith’s testimony was not credible. Smith appealed, arguing the district court arbitrarily disregarded undisputed testimony that he told his trial counsel he wanted to appeal.

ISSUE: Appearance of judicial bias and prejudice

HELD: Court reviews the district court’s stated reasons for denying the motion and notes the failure to consider the potentially corroborating testimony of Smith’s grandmother. In two stated reasons—Smith’s taste in music and Smith’s tattoos/brands—the district court improperly considered information irrelevant to the credibility determination and applied a negative stereotype. Also, district court inappropriately conducted independent factual research through a post-hearing sua sponte request to department of corrections for Smith’s tattoo/brand information, and failed to provide parties reasonable opportunity to respond before denying Smith’s motion. Reversed and remanded for a new Ortiz hearing before a different judge to consider only evidence in the record that is relevant to Smith’s credibility.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 1993 Supp. 21-4701 et seq.; K.S.A. 60-401(b), 409, -409(b)(4), -410, -410(a), -412(d)

Kansas Court of Appeals



NO. 118,334—AUGUST 17, 2018

FACTS: Nationwide Learning, Inc. created kits for teachers and students that allowed for publication of books which contained student-created content. At the time it was incorporated, Nationwide borrowed almost $5 million from C3 Capital Partners. As the business evolved, Wells Fargo obtained lease agreements on three printers. C3 ultimately foreclosed on Nationwide's assets and conveyed them to Studentreasures. Wells Fargo repossessed its collateral and sold the printers. It then sued Nationwide, which was defunct, for breaching the printer lease agreement. Wells Fargo also sued Studentreasures for both actual and punitive damages on theories of successor liability and violation of the Kansas Uniform Fraudulent Transfer Act. The district court awarded Wells Fargo in excess of $490,000 in damages and attorney fees but denied all other claims. Wells Fargo appealed.

ISSUES: (1) Successor liability; (2) application of fraudulent avoidance of debt exception; (3) liability under KUFTA; (4) punitive damages

HELD: Kansas generally recognizes the general rule of successor nonliability, with four exceptions. Successor liability is applied sparingly and must only be used when required by equity. In this case, the district court made errors of law when evaluating certain tests. Because Studentreasures is a mere continuation of Nationwide, the imposition of successor liability is warranted. To apply the fraudulent avoidance of debt exception to successor liability, Wells Fargo must prove, by clear and convincing evidence, actual fraud. That proof did not exist in this case. Because no assets were transferred, the KUFTA cannot apply. In the absence of willful or wanton conduct, the district court correctly denied the motion for punitive damages.

STATUTES: K.S.A. 2017 Supp. 84-1-103(b), 84-9-617; K.S.A. 33-201(1), -201(b)(1), -201(h), -203(b), -204(a)(1), -204(b), 60-3702(c)

Tags:  8/17/2018  Franklin District  Leavenworth District  Sedgwick District  Wyandotte District 

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