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July 2, 2020 Digests

Posted By Administration, Monday, July 6, 2020

Kansas Supreme Court

Civil

TORTS
HAMMOND V. SAN LO LEYTE VFW POST #7515
CLOUD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 118,698—JULY 2, 2020

FACTS: Jeffrey Hammond and his wife went to the San Lo Leyte VFW Post #7515. While at the VFW, Hammond encountered Travis Blackwood. The two men argued and Blackwood allegedly threatened to beat up Hammond in the bathroom. Hammond disengaged and returned to his table. Shortly thereafter, the manager of the VFW told Hammond that he needed to leave immediately and that he was banned from the club. The manager was backed up by Blackwood and his friends, who helped escort Hammond from the bar. As soon as the manager went back inside the bar, Blackwood and his friends physically assaulted Hammond. Hammond sued the VFW, but the district court granted summary judgment in favor of the VFW. The court of appeals reversed, finding that summary judgment was inappropriate. The VFW's petition for review was granted.

ISSUE: (1) Whether VFW owed a duty to Hammond

HELD: Kansas generally follows the Restatement (Second) of Torts § 344 regarding the scope of liability of owner/operators of commercial enterprises when it comes to acts of third persons. In order to be liable, the owner need not directly witness a physical altercation. Instead, a totality of the circumstances test is used to look at factors in addition to a prior attack. By granting summary judgment, the district court cut off analysis of whether an attack such as the one Hammond suffered was foreseeable. The VFW owed Hammond a duty to protect him from the dangerous acts of other bar patrons. Questions that must be answered on remand include whether Hammond's injury was foreseeable and whether the VFW breached its duty to Hammond.

STATUTES: No statutes cited.

criminal 

appeals—constitutional law—criminal procedure—motions—sentencing—statutes
state v. bradford
dickinson district court—affirmed
no. 120,683—july 2, 2020

FACTS: Bradford’s conviction on charges of capital murder, aggravated robbery, aggravated burglary, and felony theft resulted in 2003 resentencing for capital murder and the grid crimes. District court denied Bradford’s 2018 motion to correct an illegal sentence in which Bradford challenged his hard 40 sentence for capital murder. On appeal he argued for first time that the original and resentencing courts improperly classified his prior Missouri burglary convictions as person felonies, citing State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Motion to correct an illegal sentence

HELD: Bryant’s arguments fail because his sentence was not illegal when imposed. Under State v. Murdock, 309 Kan. 585 (2019)(Murdock II), State v. Weber, 309 Kan. 1203 (2019), and State v. Bryant, 310 Kan. 920 (2019), Bradford failed to establish the district court imposed an illegal sentence for purposes of K.S.A. 22-3504.

STATUTES: K.S.A. 2019 Supp. 21-6804, 22-3504(a), -3504(c)(1), -3504(c)(2), -3504(d), -3601(b)(3); K.S.A. 2018 Supp. 21-6811(e)(3), 22-3504(1), -3504(3); K.S.A. 21-3715, -3716, -4704, -4711(e), 22-3504; K.S.A. 21-4701 et seq., -4711(e) (Furse 1995)

appeals—criminal procedure—evidence—jury instructions—statutes
state v. gibson
riley district court—affirmed in part, vacated in part
no. 119,993—july 2, 2020

FACTS: State charged Gibson with first-degree felony murder and child abuse. A defense-hired psychologist (Dr. Steffen) interviewed Gibson and gave his report to a defense pathologist and to the State. Based on K.S.A. 60-437(b), district court held there was a knowing and voluntary waiver of privilege and allowed Dr. Steffen to testify about a statement Gibson made during the interview. Jury convicted Gibson as charged. Sentence imposed included hard 25 sentence for felony murder, consecutive 34-month prison term for child abuse, and lifetime postrelease supervision. On appeal Gibson claimed: (1) trial court erroneously held that Gibson waived a privileged communication with Dr. Steffen; (2) there was insufficient evidence that Gibson’s action was knowingly done and cruel; (3) use of “should” in jury instruction on State’s burden of proof discouraged jury from exercising its nullification power; and (4) cumulative error denied him a fair trial. He also claimed the sentencing court improperly imposed lifetime postrelease supervision instead of lifetime parole.

ISSUES: (1) Psychologist-client privilege waiver; (2) sufficiency of the evidence; (3) jury instruction—burden of proof; (4) cumulative error, (5) sentencing

HELD: District court did not err by allowing Dr. Steffen to testify to Gibson’s statement made during the interview. As to privilege issue, K.S.A. 74-5323(a)(communications with licensed psychologist) applies to this case, not K.S.A. 65-5810(a)-(b)(communications with licensed professional counselors). As to waiver, Gibson’s reliance on State v. Foster,  259 Kan. 198 (1996), is flawed and Foster is distinguished. District court’s ruling based on K.S.A. 60-437 is not challenged, and Gibson’s challenge under K.S.A. 2019 Supp. 60-426a(a), raised for first time on appeal, was not preserved.

            Totality of Gibson’s statements combined with other circumstantial evidence was sufficient to establish the required mental state element that Gibson’s action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3).

            As held in State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

            No trial errors found for application of the cumulative error doctrine.

            District court had no authority to order a term of lifetime postrelase supervision along with an off-grid, indeterminate life sentence. That portion of Gibson’s sentence is vacated.

STATUTES: K.S.A. 2019 Supp. 21-5202(i), -5402(a)(2), -5602(a)(3), 22-3212(c)(2), 60-426a(a); K.S.A. 22-3219(2), 60-437, -437(b), 65-5802(b), -5810, -5810(a), -5810(b), 74-5323, -5323(a)

constitutional law—criminal procedure—double jeopardy—jury instructions— trials
state v. kornelson
reno district court—affirmed; court of appeals—affirmed
no. 118,091—july 2, 2020

FACTS: State charged Kornelson in part with felony driving under the influence (DUI), under alternative theories of driving with excessive blood or breath alcohol concentration, and driving while incapable of safely operating a vehicle because of alcohol impairment. First trial ended when court declared a mistrial without objection from State or Kornelson when jury reported a deadlock on the DUI charge. Second jury convicted Kornelson on both DUI theories and on an open container charge. On appeal, Kornelson claimed for first time that the second trial violated his right against double jeopardy because the record did not reflect a “manifest necessity” for the mistrial. He also claimed the jury instruction on State’s burden of proof improperly discouraged jury from exercising its nullification power. Court of appeals affirmed in unpublished opinion, finding Kornelson failed to show that prosecutorial conduct “goaded” him into not objecting to the mistrial.  Review granted.

ISSUES: (1) Double jeopardy; (2) jury instruction—burden of proof

HELD: The second trial did not violate Kornelson’s double jeopardy rights. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court’s action. Contrary holding in State v. Graham, 277 Kan. 121 (2004), is overruled. Given the circumstances in this case, coupled with the deference and discretion Kansas caselaw affords the trial judge making these decisions, the record supports the determination that the jury was deadlocked under the manifest necessity standard.

            As held in  State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.         

STATUTES: K.S.A. 2019 Supp. 8-1017(a)(4), -1567(a)(2), -1567(a)(3). -1599(b); K.S.A. 20-3018(b), 60-2101(b)

Tags:  Appeals  Cloud District Court  Constitutional Law  Criminal Procedure  Dickinson District Court  Double Jeopardy  Evidence  Jury Instructions  Motions  Reno District Court  Riley District Court  Sentencing  Statutes  Torts  Trials 

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