Kansas Supreme Court
constitutional law—criminal law—criminal procedure—evidence—jury instructions—restitution—verdicts
state v. gentry
saline district court—convictions affirmed, restitution vacated in part
No. 116,371—september 20, 2019
FACTS: Palacio fired a gun that killed a passenger in a passing truck. Gentry was charged with aiding or abetting by planning and fueling the encounter and directing Palacio to shoot. Jury convicted Gentry of first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. Sentencing court ordered restitution that included $3642.05 for State’s trial preparation and witness expenses. On appeal, Gentry claimed district court erred by: (1) not instructing jury on unintentional but reckless second-degree murder, reckless involuntary manslaughter, and voluntary manslaughter as lesser included offenses of first-degree murder; (2) not instructing jury on attempted unintentional but reckless second-degree murder, attempted reckless voluntary manslaughter, and attempted voluntary manslaughter as lesser included offenses of attempted first-degree murder; (3) instructional error that denied Gentry his constitutional right to a fair trial; (4) denying Gentry’s motion for continuance for additional time to secure the firearms expert in Palacio’s trial; and (5) ordering Gentry to pay $3642.05 in restitution to Saline County Attorney’s office for expenses related to witnesses and preparation of photographic trial exhibits.
ISSUES: (1) Lesser included offenses—first-degree murder, (2) lesser included offenses—attempted first-degree murder, (3) constitutional right to fair trial, (4) continuance, (5) restitution
HELD: Gentry’s requested instruction on voluntary manslaughter as a lesser included offense of first-degree murder would have been legally appropriate, but not factually appropriate where Gentry’s deliberate actions were not the actions of a person who had lost control, and an aider or abettor cannot be guilty of a crime if the primary actor did not have the requisite mental state of the crime. Because evidence would reasonably justify a jury finding that Gentry acted without an intent to kill but with knowledge that Palacio would engage in conduct dangerous to life when he gave assistance or encouraged Palacio in committing homicide, instructions on lesser included offenses of unintentional but reckless second-degree murder and reckless involuntary manslaughter would have been both legally and factually appropriate. District court erred in declining to give these requested instructions, but the error was harmless. Application of skip rule is discussed regarding situation in this case where jury split its guilty verdict between premeditated first-degree murder and first-degree felony murder.
As held in State v. Shannon, 258 Kan. 425 (1995), and State v. Louis, 305 Kan. 453 (2016), attempted unintentional but reckless second-degree murder and attempted reckless involuntary manslaughter are not recognized offenses in Kanas, and thus would have been legally inappropriate instructions. An instruction on attempted voluntary manslaughter would have been legally appropriate, but not factually appropriate where evidence did not support a finding that Gentry acted in the heat of passion, and Gentry failed to explain how facts in the case might support finding that Palacio acted in the heat of passion.
Constitutional claim raised for first time on appeal is not reviewed.
No abuse of district court’s discretion in denying motion for continuance.
District court could have taxed Gentry for the photocopying and witness expenses as court costs, but instead specifically ordered reimbursement of these expenses as restitution. This was a legal error and an abuse of discretion. That portion of restitution order is vacated.
STATUTES: K.S.A. 2018 Supp. 21-5109, -5202(c), -5210(a), -5301, -5403(a)(2), -5404, -5405(a)(1), -6604, -6604(b)(1), 22-3414, 28-172a, -172a(d); K.S.A. 22-3801, -3801(a), 60-455
Kansas Court of Appeals
WHEATLAND CONTRACTING V. JACO GENERAL CONTRACTOR
JOHNSON DISTRICT COURT—AFFIRMED
NO. 120,401—SEPTEMBER 20, 2019
FACTS: Wheatland and Jaco contracted for Wheatland to perform plumbing and associated work on a commercial building in Johnson County. The contract contained a forum selection clause which stipulated that to the "extent permitted by law", venue would be in Sedgwick County. The relationship between the parties soured, and Wheatland sued Jaco in Johnson County District Court claiming breach of contract and other violations of the Kansas Fairness in Private Construction Contract Act. Jaco filed a motion to dismiss or, in the alternative, to transfer venue to Sedgwick County under the terms of the contract. The district court denied that motion, citing K.S.A. 16-1806 which requires that actions under the KFPCCA must be filed in the county where the project is located. The Kansas Court of Appeals granted Jaco's application for interlocutory review.
ISSUE: (1) Venue
HELD: The plain language of the KFPCCA does not allow parties to avoid rights or duties of the act through contractual terms. The clear language of K.S.A. 16-806 requires that venue for a lawsuit must be in the county where the real property is located. Venue selection is a "right or duty" under a contract, meaning the venue selection provision in the construction contract is unenforceable.
STATUTE: K.S.A. 16-1801, -1801(b), -1803, -1804, -1805, -1806