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February 15, 2019 Digests

Posted By Administration, Tuesday, February 19, 2019

Kansas Supreme Court


appeals—constitutional law—criminal procedure—motions—postconviction remedies—statutes
state v. lapointe
johnson district court—affirmed 
court of appeals—affirmed on issue subject to review
cross-appeal sustained in part and denied in part on question reserved
No. 113,580—february 15, 2019

FACTS: LaPointe was convicted of aggravated robbery and aggravated assault. Trial evidence included hairs on clothing that jury knew probably did not belong to LaPointe, and damaging accomplice testimony. Years later, while in federal prison and subject to a Kansas detainer, LaPointe filed K.S.A. 2017 Supp. 21-2512 motion for DNA testing of the hairs. State argued the statute, which allows postconviction testing for crimes of first-degree murder and rape, did not apply to LaPointe’s crimes. State also argued LaPointe did not file his motion while he was in state custody, and argued the test results would not have affected jury’s verdict. District court granted the motion. Analysis confirmed one hair did not belong to LaPointe, and result on other hair was inconclusive but probably not his. LaPointe filed motion for new trial. Lower courts denied relief. LaPointe appealed. State cross-appealed the DNA testing decision. Court of appeals affirmed the decision denying a new trial, and dismissed State’s cross-appeal for lack of jurisdiction. Petitions for review by all parties granted.

ISSUES: (1) Motion for new trial; (2) K.S.A. 2017 Supp. 21-2512

HELD: Under facts in the case, the favorable DNA testing did not warrant a new trial. District court’s decision on this issue is affirmed.

There is jurisdiction to consider State’s statutory arguments as questions reserved. District court did not err in deciding LaPointe was in state custody.  K.S.A. 2017 Supp. 21-2512 does not apply to LaPointe. State v. Cheeks, 298 Kan. 1 (2013), which expanded postconviction DNA testing to a second-degree murder defendant to avoid perceived equal protection problems,, is examined and overruled to the extent it held the sentence imposed determines whether an offender is similarly situated to a person to whom postconviction DNA testing is statutorily available.  

CONCURRENCE (Beier, J., joined by Luckert and Johnson, JJ.): Agrees with majority’s treatment of the motion for a new trial and the statutory “in custody” argument. Agrees with the result on the remaining issue, but would find it unnecessary to overrule Cheeks  to hold LaPointe was ineligible to file motion for DNA testing.

STATUTES: K.S.A. 2017 Supp. 21-2512, -2512(a), -2512(f), -2512(f)(2), -2512(f)(2)(B)(iv), -6804, 22-3427(a), -3602(b)(3); K.S.A. 2000 Supp. 21-4704; K.S.A. 20-3018(b), 21-3410, -3427, 60-1507, -2101(b)

appeals—constitutional law—criminal procedure—Sixth Amendment
state v. moyer
sherman district court—affirmed
No. 105,183—February 15, 2019

FACTS: Moyer was convicted of sex crimes. On direct appeal, he claimed in part conflict of interest and ineffective assistance of defense counsel, who was also serving as guardian ad litem of J.T., a witness with potential exculpatory evidence who did not testify. He also claimed the district court judge should have recused because judge’s son was in the sheriff’s office, had secured and participated in Moyer’s arrest, and was listed as a prosecution witness. Instead, the district court judge banned any mention or reference to his son during the trial. Kansas Supreme Court reserved question of cumulative error and remanded to district court for hearing under State v. VanCleave, 239 Kan. 117 (1986), to determine whether Moyer was denied his Sixth Amendment right to counsel because the defense counsel’s concurrent representation of Moyer and J.T. created an adverse conflict of interest, and/or counsel’s failure to secure J.T.’s presence at trial or preserve J.T.’s testimony was deficient performance. 302 Kan. 892 (2015), as modified in 306 Kan. 342 (2017) (Moyer I). A different district court judge conducted the VanCleave hearing, finding defense counsel had a conflict of interest but Moyer was not prejudiced because the conflict had not adversely affected counsel’s representation. Alternatively, district court found the missing testimony would not have affected the verdict because J.T. was extremely unreliable and untruthful, and State’s evidence was overwhelming. Moyer appealed the VanCleave decision.

ISSUES: (1) Sixth Amendment right to counsel,—conflict of interest, (2) Sixth Amendment right to counsel—deficient performance, (3) cumulative error

HELD: Moyer’s argument for expanded scope of the remand and VanCleave hearing is rejected. Moyer’s constitutional right to effective assistance of counsel was implicated by defense counsel’s conflict of interest when J.T.’s testimony became difficult to secure, but Moyer failed to prove adverse effect. Various tests for proving adverse effect are examined and applied.

Moyer failed to establish that defense counsel’s performance with regard to J.T.’s testimony was deficient, and even if deficiency is assumed, no showing of prejudice.

Errors found in Moyer I are restated and considered with the additional error of defense counsel’s conflict of interest. In light of the overwhelming evidence of guilt, Court remains convinced that Moyer was not denied a fair trial.     

DISSENT (Rosen, J.): Adopts reasons stated in his dissent in Moyer I, as expanded by J. Malone’s dissent in this case.   

DISSENT (Johnson, J.): Cannot adopt majority’s holding that due to overwhelming evidence of guilt the cumulative effect of errors did not deny Moyer a fair trial. In this case there was a breakdown in the execution of duties by: trial judge with a conflict of interest, defense counsel with conflict of interest, and prosecutor’s gross and flagrant misconduct. This level of unfairness cannot be condoned even if there is unquestionable guilt. Would reverse and grant a new trial that is correct and fair.

DISSENT (Malone, J.): Agrees a new trial is required, free of numerous serious errors and conflicts, and adopts J. Rosen’s dissent in Moyer I. Focusing on the most egregious error, concludes the district judge’s conflict of interest substantially prejudiced Moyer and denied him a fair trial. Would reverse and grant a new trial before a different judge.  

STATUTE: K.S.A. 60-455


Kansas Court of Appeals


NO. 119,087— FEBRUARY 15, 2019

FACTS: Woessner died after being injured at work. While he was at the hospital for treatment a urine sample was obtained, which tested positive for THC. A follow-up sample was similarly positive. The employer introduced at the regular hearing lab results from both labs. Woessner's counsel objected on hearsay and foundation grounds, but those objections were denied. Admission of evidence showing drugs in Woessner's system triggered the statutory presumption that he was impaired at the time of his accident, excusing his employer from providing compensation to his widow. After the widow appealed, the Board reversed, finding that the lab results were not admissible. Moreover, the Board concluded there was no evidence that Woessner was impaired at the time of the accident. The employer appealed.

ISSUE: (1) Admissibility of lab results

HELD: The Kansas Rules of Evidence do not apply in workers compensation cases. This means that hearsay evidence is often allowed, although there is a threshold question about whether the hearsay evidence is reliable. The Board made a legal error when it found that the sample sent for verification was "collected by an employer". It wasn't; it was taken by hospital personnel. The employer presented ample evidence that the lab results were reliable. The employer introduced sufficient evidence to trigger the presumption that Woessner was impaired. The burden then shifts to his widow to prove by clear and convincing evidence that the impairment did not contribute to his death. The Board did not make sufficient findings about this burden to allow for review. The case must be remanded so that the Board can fully consider all relevant evidence.

DISSENT (Green, J.): The Board correctly interpreted K.A.R. 51-3-5a(a) when it found that it excluded from consideration certain types of hearsay evidence.

STATUTES: K.S.A. 2017 Supp. 44-501(a)(1)(C), -501(b)(1)(C), -501(b)(1)(D), -501(b)(3), -501(b)(2), -501(b)(3),  -515, -516, -523(a), -534a, -534a(a), -555c(a), 60-460(m); K.S.A. 44-519, 77-524(a)


NO. 119,218—FEBRUARY 15, 2019

FACTS: DeBey and the Schlaefli own adjoining tracts of land. DeBey operates a seed business from his tract, and traffic is often heavy. At the time DeBey purchased the land, both parties believed the tracts were separated by a dirt path. A later survey showed that was an incorrect assumption. Schlaefli's tract stretches farther to the east than first believed, to include the driveway that customers use to reach DeBey's seed business. Schlaefli attempted to build a fence to stop traffic from using the driveway. The district court found there was an implied easement by reservation or grant allowing continued traffic to DeBey's seed business. Schlaefli appealed.

ISSUES: (1) Implied easement by reservation or grant; (2) easement overburden; (3) easement by estoppel; (4) attorney fees

HELD: An implied easement by reservation or grant is based on the intent of the parties and what expectations one party could reasonably foresee the other party had from the sale of land. In this case, a quasi-easement existed from the time the tracts were developed. DeBey gained that quasi-easement when he bought the property from Schlaefli. Schlaefli knew that DeBey intended to expand his business, making the increased traffic foreseeable at that time. There is substantial competent evidence to support a finding of equitable estoppel. Schlaefli knew DeBey's business was expanding and made no objections to the increased traffic, even though he unquestionably knew about it. Schlaefli is not entitled to attorney fees because the district court's decision was correct.

STATUTE: K.S.A. 68-117

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