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January 10, 2020 Digests

Posted By Patti Van Slyke, Monday, January 13, 2020
Updated: Monday, January 13, 2020

Kansas Supreme Court

criminal 

appeals—constitutional law—criminal law—evidence—statutes
state v. jenkins
shawnee district court—affirmed
no. 118,120—january 10, 2020

FACTS: Jenkins led police on two car chases that resulted in a fatal crash. Jury convicted him of crimes including first-degree felony murder and fleeing and eluding police. Over Jenkins’ objection, district judge allowed State to introduce recordings of five calls Jenkins made while in jail using his personal identification number (PIN), finding the State sufficiently established Jenkins’ identity as one of the speakers. On appeal, Jenkins claimed the district court erred by admitting the recordings of the jail calls, arguing reliance on his PIN was insufficient to establish he was the male speaker. He also challenged the constitutionality of K.S.A. 8-1568(b)(1)(E), the option within a means of the felony fleeing and eluding statute dependent on five or more moving violations.

ISSUES: (1) Admission of jail calls, (2) constitutionality of K.S.A. 8-1568(b)(1)(E)

HELD:  Court examined cases from other jurisdictions and concluded the seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence. On record in this case, and under current Rules and cases interpreting them, district judge did not abuse his discretion by admitting the recorded calls as evidence. State proffered evidence upon which a reasonable juror could conclude that Jenkins made the recorded calls: strong circumstantial evidence that Jenkins was the caller by use of his unique PIN, supported by the content and timing of the calls.

            Claim that the term “moving violations” in Kansas felony fleeing and eluding statute is unconstitutionally vague, which Jenkins raised first time on appeal, is considered, finding the statute is not unconstitutionally vague. Jenkins’ reliance on State v. Richardson, 290 Kan. 176 (2010), is criticized. Conduct underlying each of the moving violations used to convict Jenkins of fleeing and eluding and felony murder is clearly prohibited by Kansas law, and plain language of the defining statutory and regulatory provisions is clear. Jenkins’ argument for application of the rule of lenity is rejected.

STATUTES: K.S.A. 2015 Supp. 8-234b(d), -249(b), -1568(b)(1)(B), -1568(b)(1)(C), -1568(b)(1)(D), –1568(b)(1)(E), -1568(b)(2), 66-1,108(f); K.S.A. 8-262, -1508(c), -1519,  -1522(a), -1528(b), -1545, -1548,  60-401 et seq., 401(m), -404, -464, 66-1,108a

appeals—constitutional law—criminal procedure—jury instructions—statutes
state v. patterson
johnson district court—affirmed
no.118,180—january 10, 2020

FACTS: Patterson was convicted of crimes arising from an armed robbery in which a victim was killed by an accomplice. On appeal he claimed: (1) his felony-murder conviction violated due process because a jury was not required to determine he possessed a particular criminal mental state; (2) district court’s instructions and prosecutor’s voir dire comments improperly prevented jury from exercising its nullification power; (3) his hard 25 life sentence for felony murder is disproportionate to his crime in violation of Kansas and United States constitutions; and (4) use of prior convictions to elevate his sentence violated Sixth Amendment rights under Apprendi.

ISSUES: (1) Felony-murder conviction, (2) instructing jury to apply the law, (3) prosecutor’s voir dire, (4) hard 25 life sentence, (5) Apprendi challenge

HELD: Constitutional challenge to felony-murder statute, raised by Patterson for first time on appeal, is considered. Felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), does not operate as an unconstitutional conclusive presumption that invades the jury’s province. Intent to kill is not an element of felony murder. The statute expressly requires proof the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. By codifying participation in the felony as a statutory alternative for the intent and premeditation otherwise required for a first-degree murder conviction, the statute imposes a rule of law. It does not remove from jury’s consideration an intent element required by a criminal statute.

            No merit to Patterson’s claim that district court’s instruction undermined the jury’s nullification power. District court’s instruction that jury had a “duty” to follow the law as set out in the instructions and that it “should find the defendant guilty” if State proved all elements of the charged offenses, was legally correct.

            No merit to Patterson’s claim of error in prosecutor’s voir dire comment. It is not a misstatement of law to tell the jury to follow the law as given in the instructions.

            Patterson did not show why his case is an exception to the general rule that case-specific challenges to § 9 of Kansas Constitution may not be raised for first time appeal. And his claim that a hard 25 life sentence is unconstitutional for a class of offenders (19-year olds) given the nature of his offense (those convicted of felony murder for a killing committed by another), fails to frame a valid categorical challenge to Eighth Amendment. The hard 25 life sentence is not categorically disproportionate as applied to young adults convicted of felony murder. Patterson’s reliance on Graham v. Florida, 560 U.S. 48 (2010), is misplaced.

            Patterson’s Apprendi claim has been repeatedly rejected and is summarily dismissed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(d), -5402, -5402(a), -5402(a)(1), -5402(a)(2), -5402(b), 22- 3601(b)(3), -3601(b)(4) K.S.A. 21-3201 (Ensley)

criminal procedure—evidence—judges—statutes—witnesses
state v. lyman
geary district court—affirmed
no. 114,312 —january 10, 2020

FACTS: Lyman was convicted of felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. After Lyman filed his appeal, defense counsel was served with disclosure of potentially exculpatory evidence that prosecutor recalled seeing a family resembling Lyman and victim with his family in a store, and that the woman had acted aggressively toward one of the children. Lyman filed motion for new trial on this newly discovered evidence. He also requested a change of judge for post trial matters, alleging the judge had been sleeping during trial. District court held hearing and concluded the prosecutor’s recollection was not corroborated and too speculative to warrant a new trial. On appeal Lyman claimed district court erred by: (1) denying the motion for new trial; (2) excluding Lyman’s proposed expert witness (Young) for failing to satisfy test under Daubert, (3) allowing State to admit photos as evidence of Lyman’s prior bad acts; (4) sleeping during the trial; and (5) prohibiting Lyman from introducing medical records that were subject to a written stipulation. He also claimed cumulative error denied him a fair trial.

ISSUES: (1) Motion for new trial, (2) expert witness, (3) evidence of prior bad acts, (4) judicial misconduct, (5) stipulated medical records, (6) cumulative error

HELD: District court did not abuse its discretion by finding the newly discovered evidence was not of such materiality that it would likely produce a different result upon retrial. Lyman’s further argument for a Brady violation fails because the evidence was not credibly exculpatory or impeaching.

            Extended discussion of “Young’s postulate,” an inferential test Young had developed and used to base all his testimony and opinions in this case. District court did not abuse its discretion by excluding Young’s testimony for failure to satisfy test in Daubert, finding Young’s inferential test was contrary to fundamental tenets of Kansas evidence law, Young’s opinions were developed for purposes of testifying for defendants charged with child abuse, and that another Kansas trial court had found Young was not credible and his medical testimony was not worthy of any belief. Court rejects Lyman’s invitation to separate Young’s opinions reached from using the inferential test from those that were not.

            Under facts in case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. For evidence so similar to medical observations and conclusions at issue it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. District court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect.

            Lyman’s motion for change of judge did not satisfy affidavit requirement in K.S.A. 20-4111d, and motion also fails on the merits.

            Parties stipulated to the admissibility of medical records that form the basis of opinion of people for purposes of their direct and cross-examination. District court did not abuse its discretion by refusing to admit the medical records because the expert witness would not be testifying.

            No errors support Lyman’s cumulative error claim.

STATUTES: K.S.A. 2018 Supp. 22-3501(1), 60-455, -455(a), -455(b), -456(b); K.S.A. 20-311d, -311d(b), 22-3501, 60-401(b), -455, -456(b)

 

Kansas Court of Appeals

CIVIL

EMPLOYMENT—LEGISLATORS—VICARIOUS LIABILITY
LONG V. HOUSER
CHEROKEE DISTRICT COURT—AFFIRMED
NO. 120,866—JANUARY 10, 2020

FACTS: In 2017, Houser was a state representative for the State of Kansas. His job duties required that he be in Topeka during the legislative session. The state provided Houser with a per diem for lodging and meals, plus travel expenses. After the Legislature recessed for a break, Houser spent the night in Topeka and then got in his personal vehicle to return home. During the trip, Houser crossed the center line and hit Long's car, injuring him. Long sued both Houser and the State. The State sought summary judgment, arguing that it was not liable for Long's injuries because Houser was not acting within the scope of his employment while he was traveling home from Topeka. The district court agreed, and Long appealed.

ISSUE: (1) Whether Houser was acting within the scope of his employment at the time of the accident

HELD: Vicarious liability is the idea that the losses caused by an employee's tortious conduct are passed on to the employer as a cost of doing business. Vicarious liability only exists if the employee was acting within the scope of their employment at the time the tortious activity occurred. Although it has not been used in a tort context, the "going and coming rule" applies to third-party tort liability claims as a gauge to determine whether vicarious liability exists. The facts of the case make it clear that Houser was not acting within the scope of his employment at the time of the accident. This is true even though the State reimbursed Houser for travel costs.

STATUTE: K.S.A. 2018 Supp. 75-3203(a), -3202(b), -3203(e), -6103(a)

 

criminal 

appeals—constitutional law—criminal law—evidence—fourth amendment—motions 
state v. daino
johnson district court—reversed and remanded
no. 120,824—january 10, 2020

FACTS: Uniformed officers responded to report of marijuana odor coming from unit in apartment complex. Daino opened door 8-10 inches and officer asked if it was OK to step in to write ticket for marijuana. Daino did not verbally respond, but opened the door further and stood out of the way. Once officers discovered evidence of significant drug activity, Daino signed consent form for search of apartment but for roommate’s room. Drug charges filed. Daino filed motion to suppress, alleging illegal search in violation of Fourth Amendment. District court granted the motion, finding any reasonable person would have construed Daino’s response to indicate consent for officers to enter the apartment, but under Kansas law implied consent was not valid. State filed interlocutory appeal. On appeal Daino challenged sufficiency of the evidence of district court’s credibility finding regarding officer’s testimony.

ISSUES: (1) Cross-appeal, (2) consent to search

HELD: Sole issue on appeal is whether Daino’s consent for officers to enter apartment and investigate was invalid because it was implied. Daino filed no cross-appeal from district court’s adverse ruling, thus cannot challenge the sufficiency of the evidence or the district court’s credibility finding.

            District court’s factual findings are supported by substantial competent evidence, but its legal conclusion that Kansas law requires express, verbal consent is erroneous. While it is well established law that mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent, no Kansas Supreme Court case holds that consent must be verbal to be valid. Application of “mere acquiescence” rule by Court of Appeals panels, and subsequent Kansas Supreme Court cases, are examined and factually distinguished. Federal court cases upholding implied consent to enter a residence also are cited. Here, uncontested facts show that Daino yielded right of way to officers by his nonverbal, affirmative communication. Totality of circumstances shows that he unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate smell of marijuana.

DISSENT (Buser, J.): Under totality of circumstances, would find Daino did not unequivocally, specifically, and freely and intelligently consent to officer’s entry into the apartment. Officer’s statements to Daino were misleading, and insufficiently informed Daino of officer’s purpose in seeking entry into the apartment or of Daino’s constitutional right to refuse entry. A reasonable person would understand that Daino was silently acquiescing to officer’s claim of lawful authority to enter the apartment because officer knew there was marijuana inside and was required to issue a citation. Would affirm district court’s suppression of evidence due to Fourth Amendment violation.  

STATUTE: K.S.A. 2018 Supp. 60- 2103(h); K.S.A. 21-5709(b)(1), 65-4105(d)(17), -4107(d)(1)

appeals—contempt—criminal procedure—evidence—witnesses
state v. lamb (towner)
shawnee district court—affirmed
No. 117,861—january 10, 2020

FACTS: Lamb charged with murder of victim in car Towner was driving, and with attempted murder of Towner. For Lamb’s preliminary hearing, Lamb and Towner had been transported to courthouse together and placed in same holding cell. When called to testify and identify Lamb as the shooter, Towner refused to testify. District court held Towner in contempt and ordered confinement. Charges against Lamb were dismissed. Towner appealed the court’s order of  direct criminal contempt, arguing he was threatened into not testifying and district court erred by not holding an in camera hearing, without Lamb present, so Towner could explain why he was not testifying. State asserted the appeal was moot because Towner had completed his six-month sentence for contempt, and failed to preserve his issue for appeal.

ISSUES: (1) Mootness of the appeal, (2) preservation of issue on appeal, (3) contempt

HELD: State v. Flanagan, 19 Kan. App. 2d 528 (1994), is distinguished as a contempt citation is not a criminal conviction and does not appear on a defendant’s criminal history. But mootness doctrine does not prevent the appeal because issue may be subject to repetition.

            Panel proceeds on the merits notwithstanding close call whether Towner properly preserved his claim that there was insufficient evidence to find him in contempt because judge disregarded information from prosecutor that Towner was under duress and did not provide Towner a safe environment to set forth his defense.

            District court’s decision finding Towner in direct criminal contempt is affirmed. A judge has no duty to sua sponte hold an in camera hearing to determine if a witness is fearful to testify when the witness makes no such request. Towner failed to make a proffer of the evidence he wanted the court to consider, and the three federal cases he cited do not support his position. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness.

STATUTES: K.S.A. 2018 Supp. 21-5107(a), -5206; K.S.A. 60-405

appeals—criminal procedure—jurisdiction—motions—sentences—statutes
state v. mccroy
reno district court—appeal dismissed
No. 120,783—january 10, 2020

FACTS: District court sanctioned McCroy with second 180-day prison term after he violated terms of probation. State did not file motion to correct the order and instead appealed, arguing the second sanction was an illegal sentence because Kansas law only contemplates one 180-day sanction. McCroy contends there is no jurisdiction to consider State’s appeal which was not authorized by K.S.A. 22-3602 or any other appellate jurisdiction statute.

ISSUE: Appellate jurisdiction

HELD: K.S.A. 22-3504, governing post trial motions including motion to correct an illegal sentence, is not an appellate jurisdiction statute and does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court’s jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602. Different conclusion summarily reached in State v. Scherzer, 254 Kan. 926 (1994), but the sweeping jurisdictional statement in Scherzer no longer reflects the state of Kansas law. Appellate court’s jurisdiction is limited to those situations authorized by statute. State did not present its argument as a question reserved under K.S.A. 22-3602(b)(3), and panel makes no finding as to whether State’s general concerns regarding a second 180-day sanction could be raised in that context.

STATUTES: K.S.A. 2018 Supp. 21-6820, 22-3501(1), -3502, -3504(1), -3602(a), -3602(b), -3602(f), -3716; K.S.A. 22-3504, -3504(a), -3601, -3602, -3602(b), -3602(b)(3), -3603, 60-1507, -2101, -2101(a), -2101(b)

Tags:  Appeals  Cherokee District Court  Constitutional Law  Contempt  Criminal Law  Criminal Procedure  Employment  Evidence  Fourth Amendment  Geary District Court  Johnson District Court  Judges  Jury Instructions  Legislators  Motions  Shawnee District Court  Statutes  Vicarious Liability  Witnesses 

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December 20 and December 27, 2019 Digests

Posted By Administrator, Friday, January 3, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—search and seizure
State v. Chavez-Majors
butler district court—affirmed on issue subject to review and remanded
court of appeals—affirmed in part
No. 115,286—december 20, 2019

FACTS: Chavez-Majors convicted of aggravated battery while driving under the influence, based on motorcycle accident that caused injury to another person. Park Ranger first at scene requested EMS to draw blood from unconscious Chavez-Majors. District court denied motion to suppress the blood test results, finding the warrantless search was reasonable under probable cause plus exigent circumstances exception which satisfied the  three-prong test in Schmerber v. California, 384 U.S. 757 (1966). Court of appeals affirmed the denial of motion to suppress, but reversed the conviction because Chavez-Majors had not knowingly and voluntarily waived his right to jury trial. 54 Kan. App. 2d 543 (2017). Review granted on Chavez-Majors petition for review of panel’s decision affirming the denial of motion to suppress. State’s cross-petition for review of the jury trial issue was denied.

ISSUES: (1) Warrantless search—probable cause, (2) warrantless search—exigent circumstances

HELD: Court of Appeals decision regarding probable cause is affirmed. Probable cause determination is supported by Chavez-Majors driving at high rate of speed around curve and into parking lot he knew held parked cars and congregating people, and by strong odor of alcohol on Chavez-Majors’s breath.  

            As to whether exigent circumstances supported the warrantless blood draw, lower courts did not have benefit of Mitchell v. Wisconsin, 588 U.S. __ (2019). Because Chavez-Majors has not had a chance to fully litigate his claim under the change of law created by Mitchell, case is remanded to district court for an evidentiary hearing and district court ruling on exigency in light of Mitchell.

STATUTES: K.S.A. 2013 Supp. 8-1567; K.S.A. 22-3216

 

Kansas Court of Appeals

Civil

ATTORNEY PERFORMANCE—HABEAS CORPUS
BAKER V. STATE
LABETTE DISTRICT COURT—AFFIRMED
NO. 118,695—DECEMBER 20, 2019

FACTS: Baker pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. Baker had originally been charged with aggravated criminal sodomy, a charge which could have resulted in a death penalty when combined with the murder charge, but it was dismissed under the plea agreement. At the sentencing hearing, defense counsel did not present any evidence regarding Baker's mental health. Baker received a hard 20 sentence for the felony murder, plus an additional 147 months for the other convictions. All of these sentences were presumptive for Baker's convictions, but Baker received the aggravated sentence rather than the standard sentence. Baker's convictions were affirmed on direct appeal. He timely filed a K.S.A. 60-1507 motion, plus three amended motions, in which he claimed that trial counsel was ineffective for failing to ensure that his grid sentences were ordered to run concurrently and for failing to investigate his mental health issues and present mitigating evidence. The district court denied the motion after an evidentiary hearing, and Baker appeals.

ISSUES: (1) Timeliness of the K.S.A. 60-1507 motion, (2) merits of Baker's motion

HELD: The State did not raise the timeliness issue before the district court. They waived any appellate argument by not arguing timeliness in district court. The panel assumes without deciding that trial counsel's performance was deficient under the totality of the circumstances. The only issue to decide is whether trial counsel's deficient performance was so prejudicial that Baker was harmed. The district court did not correctly apply the Strickland test and did not properly evaluate the evidence. But even when the correct test is used, the district court correctly determined that no prejudice resulted from trial counsel's deficient performance.

DISSENT: (Leben, J.) Trial counsel made no argument for anything less than the maximum possible sentence. There was a great deal of evidence regarding Baker's life experiences and mental health conditions, and that could have made a difference at sentencing. Trial counsel was prejudicially ineffective for not presenting that evidence at sentencing. He would remand this case for resentencing before a different judge.

STATUTE: K.S.A. 2018 Supp. 60-1507(f)(1); K.S.A. 60-1507

criminal 

criminal procedure—sentences—statutes
state v. gibson
geary district court—sentence vacated and case remanded
No. 120,657—december 20, 2019

FACTS: When Gibson was arrested on drug charges, he misidentified himself as his brother. The brother was then arrested for failure to show up for a hearing. Relevant to this appeal, Gibson was convicted of identity theft and perjury. Presumptive sentence was probation, but district  court granted State’s motion for a dispositional-departure sentence of prison, finding the harm from Gibson’s crimes was greater than usual. Gibson appealed.

ISSUE: (1) Dispositional departure sentence

HELD: Statutory-counterpart rule discussed. K.S.A. 2018 Supp. 21-6815 provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for departure in that departure direction. Because less-than-typical harm is in list of mitigating factors but greater-than-typical harm is not included in list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. Sentence vacated and case remanded for resentencing.   

STATUTES: K.S.A. 2018 Supp. 21-6815, -6815(c)(1)(E); K.S.A. 2005 Supp. 21-4716(c)(2)(D); K.S.A. 2003 Supp. 21-4716(c)(1)(B); K.S.A. 1997 Supp. 21-4716(b)(1)(E); K.S.A. 1994 Supp. 21-4716(b)(2)(A)

constitutional law—due process—criminal procedure—probation—statutes
state v. gonzalez
sedgwick district court—remanded with directions
No. 120,179—december 27, 2019

FACTS: Following a hearing and determination of competency, Gonzalez convicted and sentenced to 52 month prison term with dispositional departure to probation for 36 months. Some seven months later he was arrested for violating probation. Noting the statutory processes for competency evaluations do not explicitly apply to probation revocation proceedings, district court revoked probation without addressing competency concerns raised by appointed counsel. Gonzalez appealed, claiming a constitutionally protected right to be mentally competent at his probation hearing.

ISSUE: (1) Probation revocation—constitutional due process

HELD: Gonzalez’ Fourteenth Amendment claim was not waived by counsel’s assertion of rights notwithstanding her failure to mention “constitution” or “due process.” Competency for due process purposes in revoking probation, an issue not yet addressed by U.S. Supreme Court or Kansas Supreme Court, is examined. The State may not revoke probation of a convicted felon who is not mentally competent at the time of the revocation hearing. In this case, district court acknowledged there were legitimate reasons to believe Gonzalez may not have been competent. The absence of a statutory procedure for competency evaluations in criminal cases after defendants have been sentenced is not a barrier to district court’s inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. District court erred in revoking Gonzalez’ probation without determining he was mentally competent. On remand, district court should determine if a retrospective competency evaluation can be done. If State agrees to forgo that accommodation, or district court determines such an evaluation is not feasible, then the revocation must be set aside with a new revocation proceeding and competency evaluations ordered if genuine competency issues remain. Due process requirements for statutory sanctions short of revocation are distinguished and not addressed.  

STATUTES: K.S.A. 2018 Supp. 22-3303, -3716(b)(2), -3716(c)(1)(B), - 3716(c)(11), K.S.A. 22-3202, -3301 et seq., -3302(1)

criminal procedure—probation—statutes
state v. tearney
wyandotte district court—affirmed
No. 120,340—december 20, 2019

FACTS: In 2014, district court imposed prison term but granted dispositional departure for 36 months’ probation. Probation revoked in 2016. In unpublished opinion, court of appeals reversed the revocation and remanded because district court erroneously believed Tearney had served two intermediate sanctions. While that appeal was pending, Legislature enacted the dispositional departure exception, K.S.A. 2017 Supp. 22-3716(c)(9)(B), on July 1, 2017. On remand, district court applied the new exception and again revoked probation. Tearney appealed, claiming the exception does not apply retroactively.

ISSUE: (1) Probation revocation—retroactive application of dispositional departure exception

HELD: K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant’s probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This exception applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. Retroactive application of the exception does not result in manifest injustice. Accordingly, the exception applies to Tearney’s 2016 probation violations even though her violations occurred before the exception took effect.

STATUTES: K.S.A. 2017 Supp. 22-3716(c)(9)(A), -3716(c)(9)(B), -3716(c)(12); K.S.A. 2014 Supp. 22-3716(c)

Tags:  Butler District Court  Constitutional law  criminal procedure  due process  Geary District Court  habeas corpus  Labette District Court  motions  probation  search and seizure  Sedgwick District Court  sentences  statutes 

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December 13, 2019 Digests

Posted By Administration, Monday, December 16, 2019

Kansas Supreme Court

Criminal 

attorneys—constitutional law—criminal law—
evidence—jury instructions—statutes
State v. Harris
Lyon district court—affirmed; court of appeals—affirmed
No. 112,883—December 13, 2019

FACTS: Harris held victim for two hours, repeatedly forcing her to move from room to room within small apartment while demanding money. Jury convicted him of robbery, kidnapping, and criminal threat. Harris appealed on claims of trial errors and ineffective assistance of counsel. Case remanded for Van Cleave hearing, with no relief granted. In unpublished opinion, Court of appeals affirmed, rejecting the ineffective assistance claim, and finding two trial errors which were harmless both individually and collectively. Review granted on adequately briefed issues. Harris claimed insufficient evidence supported the kidnapping conviction and reasserted his claims of cumulative error and ineffective assistance of counsel. For first time on appeal, he claimed district court erred in failing to instruct on criminal restraint as a lesser included offense and failing to give unanimity instruction for kidnapping and robbery.

ISSUES: (1) Sufficiency of evidence—kidnapping,  (2) jury instructions—lesser included offense, (3) jury instructions—unanimity, (4) cumulative error, (5) ineffective assistance of counsel

HELD: Forcing victim from room-to room within one-bedroom apartment constitutes a taking or confinement within kidnapping statute’s meaning under State v. Bugs, 219 Kan. 203 (1976), and Harris’ movements were not merely incidental to the robbery. No substantive basis for Harris’ claim that his two-hour holding of the victim was part of one continuous effort to get the victim’s money. Pursuant to State v. Haberlein, 296 Kan. 195 (2012), panel correctly rejected Harris’ alternative means claim that evidence failed to show he held victim with intent to facilitate flight.

State conceded a lesser included instruction was factually and legally appropriate, but panel correctly found no clear error on facts in this case.

Unanimity instruction on the kidnapping count would not have been appropriate because all of Harris’ actions were part of one unitary conduct. And no unanimity instruction was necessary on robbery count because State elected one of the two acts that could separately constitute the alleged robbery.

No reversal on cumulative effect of district court’s error of instructing on criminal restraint as an alternative crime rather than a lesser included offense, and omitting the specific crime the kidnapping was meant to facilitate.

Van Cleave court found counsel’s failure to challenge the sufficiency of the charging document within 14 days after trial deprived Harris of the more-strict standard of review under State v. Hall, 246 Kan. 728 (1990), but no prejudice occurred under the “post-Hall” common-sense rule. Panel affirmed on the prejudice prong, applying State v. Dunn, 304 Kan. 773 (2016), which overruled Hall. But issue for appellate review was not the charging document’s sufficiency but whether Harris’ opportunity for a hearing under the pre-Hall standard was squandered. Following Ferguson v. State, 276 Kan. 428 (2003), the common-sense rule applies and record shows Harris suffered no prejudice.

STATUTES: K.S.A. 2018 Supp 21-5408, -5408(a), -5408(a)(2), -5420(a), 22-3201(b) -3414(3), -3502; K.S.A. 2015 Supp. 60-261 

Kansas Court of Appeals

Civil

CONSUMER PROTECTIONCONTRACTSFORUM SELECTION
KANSAS CITY GRILL CLEANERS, LLC V. THE BBQ CLEANER, LLC
JOHNSON DISTRICT COURT
REVERSED AND REMANDED
NO. 118,687
DECEMBER 13, 2019

FACTS: Kansas City Grill Cleaners, LLC, and The BBQ Cleaner, LLC entered a contract for the purchase of outdoor grill cleaning equipment and supplies. The purchase agreement contained choice-of-law and forum-selection clauses which established that venue would exist only in Bergen County, New Jersey. In August 2016, KC Grill filed suit in Johnson County against BBQ Cleaner alleging a deceptive trade practice claim under the Kansas Consumer Protection Act. Relying on the forum-selection clause, BBQ Cleaner filed a motion to dismiss. The district court granted the motion, citing the forum-selection clause. KC Grill appealed.

ISSUE: (1) Enforcement of forum-selection clause

HELD: A forum-selection clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances. The KCPA contains a venue statute which is designed to allow Kansas consumers with certain prerogatives in prosecuting a consumer protection claim. A plain reading of that statute makes it clear the legislature intended to allow Kansas consumers to file suit against non-resident companies in Kansas. The district court erred when it found the forum-selection clause in this contract was enforceable.

STATUTE: K.S.A. 50-623(b), -625, -625(a), -625(c), -638(b)

DRIVER'S LICENSE SUSPENSION
MOLINA V. KANSAS DEPARTMENT OF REVENUE
FORD DISTRICT COURT
AFFIRMED
NO. 119,766
DECEMBER 13, 2019

FACTS: Deputy Scott stopped Molina after he was seen failing to maintain a single lane and changing lanes without signaling. After the stop, the officer noticed that Molina smelled like alcohol and had slurred speech. Molina failed a series of field sobriety tests and his preliminary breath test. Molina was arrested and transported to the sheriff's office, where personnel administered the Intoxilyzer 9000 breath test after waiting the prescribed 20 minutes. Molina's sample showed an alcohol level far exceeding the allowable amount, and Molina was given notice that his driving privileges were being suspended. Molina requested an administrative hearing and then review by the district court, claiming that Deputy Scott failed to substantially comply with the Intoxilyzer testing protocol. At the district court hearing, Molina's counsel failed to subpoena Deputy Scott, so there was no testimony regarding compliance with the testing protocol. Nevertheless, Molina argued that his Intoxilyzer results were flawed because Deputy Scott did not wait the required 20 minutes before administering the test. The district court disagreed, and Molina appealed.

ISSUE: (1) Compliance with testing procedure

HELD: Substantial compliance is sufficient to satisfy the 20-minute wait requirement. There is absolutely no evidence to support Molina's claim that his waiting period was improperly cut short. Molina failed to meet his burden to prove error. Moreover, substantial evidence proves that more than 20 minutes elapsed from the start of the waiting period to when Molina actually performed the test. The district court correctly rejected Molina's claims to the contrary.

STATUTE: K.S.A. 2018 Supp. 8-259(a), -1020(h)(2)(F), -1020(q), 77-603(a), -621(a)(1), -621(c)(7), -621(d)

 

Tags:  attorneys  constitutional law  consumer protection  contracts  criminal law  driver's license suspension  evidence  Ford District Court  forum selection  Johnson District Court  jury instructions  Lyon District Court  statutes  Weekly20191217 

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December 6, 2019 Digests

Posted By Patti Van Slyke, Monday, December 9, 2019

Kansas Supreme Court

 

Attorney Discipline

ONE-YEAR SUSPENSION, STAYED DURING AN EXTENDED PROBATION
IN RE ANDREW M. DELANEY
NO. 121,208
DECEMBER 6, 2019

FACTS: A hearing panel determined that Delaney violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); and 1.7(a) (conflict of interest). Delaney was placed on probation in November 2014 and remained on probation at the time these matters arose. The allegations of new discipline involved Delaney's representation of a client in a divorce action and his failure to free his client from debt on a vehicle retained by the ex-spouse. In addition, Delaney failed to properly negotiate a plea agreement on behalf of three other clients, none of whom were aware of the potential conflict of interest.

HEARING PANEL: The hearing panel found facts sufficient to sustain all alleged rule violations. The panel found several aggravating factors, including prior discipline. But there were also mitigating circumstances such as the absence of a dishonest motive and some mental health issues. The disciplinary administrator recommended a one-year suspension, with that suspension suspended so that Delaney's probation could be extended for two years. This recommendation was joined by Delaney and his counsel, and the panel determined that the probation plan proposed by Delaney was workable and appropriate.

HELD: In the absence of any exceptions, the hearing panel's findings of fact and conclusions were accepted. After hearing arguments, a majority of the court agreed that the probation plan proposed by the disciplinary administrator and Delaney was appropriate. Delaney's license to practice law in Kansas was suspended for one year, with that suspension stayed in favor of a two-year term of probation. A minority of the court would have imposed a less severe sanction.

ORDER OF DISBARMENT
IN RE JOAN M. HAWKINS
NO. 121,064—DECEMBER 6, 2019

FACTS: After Hawkins failed to participate or appear, a hearing panel found that Hawkins violated KRPC 1.3 (diligence); 1.15(a) and (b) (safekeeping property); 1.16(d) (termination of representation); 8.1(b) (failure to respond to disciplinary authority); Rule 207(b) (failure to cooperate in disciplinary investigation); Rule 211(b) (failure to answer in disciplinary proceeding); and Rule 218(a) (failure to file motion to withdraw upon suspension). The allegations arose after Hawkins failed to file pleadings on behalf of clients. In addition, Hawkins was suspended but failed to withdraw or take the steps required of her during the suspension. In addition, Hawkins made deposits into her attorney trust account even after she was suspended, and she paid personal bills directly out of her trust account.

HEARING PANEL: Hawkins failed to appear or participate in the hearing panel process. This failure, combined with the evidence presented to the hearing panel, resulted in the disciplinary administrator seeking discipline of either indefinite suspension or disbarment. The hearing panel recommended that Hawkins be disbarred.

HELD: The Clerk of the Supreme Court made repeated efforts to serve Hawkins with the notice of hearing. All certified mail was returned unclaimed and an attempt to make personal service was similarly unsuccessful. The court found that adequate notice was given of both the formal complaint and the hearing. Because Hawkins did not participate, panel's findings of fact and conclusions of law were deemed admitted. And in the absence of an appearance at the disciplinary hearing, the court adopted the disciplinary administrator's recommendation that Hawkins be disbarred.

 

Court Reporter Discipline

PUBLIC REPRIMAND
IN RE APRIL C. SHEPARD
CCR NO. 1318 – DECEMBER 6, 2019

FACTS: April Shepard works as a court reporter in Wyandotte County. She previously served in that capacity in Shawnee County. In June 2018, the State Board of Examiners of Court Reporters filed a formal complaint against Shepard alleging a violation of Board Rule No. 9.F.9. The facts showed that Shepard worked as a court reporter on a high-profile murder trial. After the defendant's conviction was overturned on appeal, a newspaper article quoted from Facebook posts made by Shepard in which she opined that the defendant was guilty and would be convicted again. Shepard admitted that she made the posts but defended herself by claiming that she behaved in an impartial manner during the trial and noted that she no longer worked for Shawnee County.

BOARD: The Board's disciplinary counsel asked that Shepard be subjected to public discipline, in order to provide transparency and increase public confidence in the profession. Shepard asked that any discipline be private, noting that she stipulated to the rule violation and arguing that her conduct was not severe enough to warrant public discipline. After considering arguments, the Board recommended that Shepard receive a public reprimand.

HELD: In the absence of objections, the Board's findings and conclusions were adopted. The court found that Shepard's conduct was egregious and damaging to the profession, but also noted that she cooperated with the investigation and admitted to wrongdoing. The court agreed that a public reprimand was the appropriate discipline.

 

Civil

EMINENT DOMAIN—INVERSE CONDEMNATION—JURISDICTION
GFTLENEXA, LLC V. CITY OF LENEXA
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,278—DECEMBER 6, 2019

FACTS: Through a series of leases and subleases, GFTLenexa ended up as the landlord of a Bridgestone tire dealer. In October 2013, the City of Lenexa filed a condemnation action with the goal of making street improvements and creating a permanent public utility easement. The district court granted the condemnation request and paid appropriate compensation to affected parties; neither GFTLenexa nor Bridgestone participated and neither was awarded compensation. A year later, Bridgestone sought declaratory judgment against GFTLenexa claiming it was entitled to reduced rent because the property had been partially condemned. The district court dismissed the action on GFTLenexa's motion for summary judgment on the theory that GFTLenexa did not receive any proceeds from the condemnation. The Court of Appeals reversed and remanded and on remand, the district court ordered GFTLenexa to both reduce Bridgestone's monthly rent and refund past overpayments. This decision prompted GFTLenexa to file an inverse condemnation action against the City for a loss of its intangible property rights. The district court granted the City's motion for summary judgment. GFTLenexa filed a notice of appeal to the Kansas Supreme Court.

ISSUES: (1) Jurisdiction; (2) need for inverse condemnation

HELD: Inverse condemnation actions are not creatures of statute. K.S.A. 2018 Supp. 26-504 requires that appeals in eminent domain cases go directly to the Kansas Supreme Court. Inverse condemnation actions are not eminent domain actions, and cases involving an inverse condemnation must be filed in the court of appeals. Even though the case was filed in the wrong court, the court exercises its power of concurrent jurisdiction to rule on the controversy before it rather than transfer it to the court of appeals. The eminent domain petition did not name GFTLenexa as a party and GFTLenexa chose not to participate in the process. The City's failure to name GFTLenexa is not determinative; GFTLenexa could have—and should have—sought to intervene in the condemnation. Requiring the City to pay again in an inverse condemnation action violates the undivided fee rule.

STATUTES: Kansas Constitution, Article 3, § 3; K.S.A. 2018 Supp. 26-504; K.S.A. 20-3018(a), 26-517, 60-2101(a), -2101(b)

 

criminal 

criminal procedure—motions—sentences—statutes
state v. carpenter
sedgwick district court—affirmed; court of appeals—affirmed
no. 115,713—december 6, 2019

FACTS: Complaint charged Carpenter of burglary, theft, and criminal damage to property. A separate complaint charged February 2008 offenses of aggravated indecent liberties with a child and criminal sodomy. Carpenter convicted on all charges. District court’s pronouncement stated a 55 month underlying sentence and 36 months of post-release supervision, but journal entry reflected lifetime postrelease supervision in case involving sexually violent offenses. Probation revoked two years later, with imposition of underlying sentence and lifetime postrelease supervision. Carpenter filed motion to correct illegal sentence by confirming the orally pronounced sentence of 36 months’ postrelease supervision, distinguishing postrelease for persons sent to prison versus those granted probation. State argued the lifetime postrelease supervision was mandatory and the 36-month supervision itself was illegal. District court agreed and denied the motion. Court of Appeals affirmed in unpublished opinion. Review granted. While appeal was pending, parties ordered to show cause why sole issue on review was not controlled by State v. Brook, 309 Kan. 780 (2019).

ISSUE: Lifetime postrelease supervision under K.S.A. 22-3717(d)(1)

HELD: District court and Court of Appeals are affirmed based on Brook. Due to nature and timing of his offenses, Carpenter is subject to lifetime postrelease supervision under K.S.A. 22-3717. For determining length of postrelease supervision, Legislature clearly distinguished between categories of sexually violent offenses in K.S.A. 22-3717(d)(1)(D) and (G) based on date of their commission, not by sentences of probation versus prison. K.S.A. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime committed on or after July 1, 2006. There are no persons convicted of a sexually violent crime on or after that date to whom both subsection K.S.A. 22-3717(d)(1)(A) and subsection (d)(1)(G) apply. Construing the statute as a whole and giving effect to all subsections, there is no conflict or ambiguity in K.S.A. 22-3717(d)(1).

STATUTES: K.S.A. 2015 Supp. 22-3717(d)(1); K.S.A. 2013 Supp. 22-3717(d)(1); K.S.A.20-3018(b), 21-4704, 22-3504, -3717, -3717(d)(1), -3717(d)(1)(A), -3717(d)(1)(G), -3717(d)(2)(C), -3717(d)(2)(D), 60-2101(b)

criminal law—criminal procedure—evidence—jury instructions
state v. claerhout
johnson district court—affirmed; court of appeals—affirmed
no. 115,227—december 6, 2019

FACTS: Claerhout was convicted of reckless driving and second-degree murder for unintentional but reckless homicide. District court allowed State to introduce Claerhout’s prior diversion agreement for purpose under K.S.A. 60-455(b); allowed an officer to evaluate the relative speeds of the two vehicles at the time of collision; and denied Claerhout’s request for voluntary intoxication instruction. On appeal Claerhout challenged:  (1) admission of the K.S.A. 60-455 evidence; (2) officer’s qualification to testify about scientific and mathematical conclusions; and (3) denial of the requested instruction. Court of appeals affirmed, 54 Kan.App. 2d 742 (2017). Review granted on all issues.

ISSUES: (1) Evidence of prior diversion agreement, (2) expert testimony, (3) voluntary intoxication instruction

HELD: Claerhout’s diversion agreement had probative value that outweighed its prejudicial effect. Statutory requirements and specific details outlined in a diversion for driving under the influence essentially serve the same purpose as a conviction in showing its relevance. In this case, any deficiency in district court’s abbreviated evaluation of possible prejudicial effect was harmless. No need at this time to decide how little or how much analysis a district count must display to satisfy due process mandates in State v. Boysaw, 309 Kan. 526 (2019), but courts are encouraged to state on the record the factors considered in weighing the admissibility of K.S.A. 60-455 evidence.

            Kansas Supreme Court has not previously ruled on the degree to which an expert must be able to demonstrate knowledge of the principles underlying the expert’s expertise. It is not necessary that an expert witness demonstrate expertise in every theory, principle or scientific discipline underlying the knowledge, skill, experience, training or education that may qualify an expert witness to give testimony. Background of officer in this case sufficed to meet the statutory requirements for qualification as an expert witness.

            The requested voluntary intoxication instruction was not factually appropriate. Voluntary intoxication is not a defense to reckless second-degree murder. Claerhout’s theory, that evidence of his intoxication tends to show he could not attain a reckless state of mind because of impaired mental function, is rejected. Instead, cited cases show common thread of courts treating intoxication as evidence of recklessness.

STATUTES: K.S.A. 2018 Supp. 8-1567(i)(1), -1567(i)(6), 21-5403(a)(2), -5403(b)(2), 60-455(a), -455(b), -456(b); K.S.A. 2016 Supp. 60-455(b); K.S.A. 60-455

criminal procedure—motions—postconviction remedies—statutes
state v. fox
cherokee district court—affirmed
No. 115,247—december 6, 2019

FACTS: In 2013, Fox filed a K.S.A. 22-3210 motion to withdraw his 1982 guilty plea, arguing in part for equitable tolling of the limitation period. District court denied the motion as untimely filed with no showing of excusable neglect. Fox appealed, further arguing he had been imprisoned in Florida for several years without access to a phone or library materials about Kansas law. He also claimed manifest injustice, citing ineffective assistance of counsel, duplicitous charges, and jurisdictional claims.

ISSUE: Statue of limitations—excusable neglect

HELD: Grace period in 2009 amendment to K.S.A. 22-3210 allowed Fox until April 2010 to file his motion. District court did not abuse its discretion in finding Fox did not establish excusable neglect to permit his untimely filing. No facts support equitable tolling of the limitation period where Fox was held in a Kansas prison about seven years before the statute of limitations ran.  No need to address whether Fox established manifest injustice.

STATUTES: K.S.A. 2018 Supp. 22-3210, -3210(d)(2), -3210(e)(1), -3210(e)(2), -3601(b); K.S.A. 60-1507

criminal procedure—juries—jury instructions—motions—trials
state v. pruitt
Butler District Court—affirmed
NO. 118,448—december 6, 2019

FACTS: Pruitt was convicted of first-degree premeditated murder. On appeal he claimed: (1) prosecutor error during closing argument; (2) judge should have instructed jury on lesser included offenses of reckless second-degree murder and reckless voluntary manslaughter, (3) erroneous instructions foreclosed jury’s power of nullification; (4) a new trial should have been granted because one juror slept during part of the proceedings; and (5) cumulative error denied him a fair trial.  

ISSUES: (1) Prosecutorial error, (2) instructions on lesser included offenses, (3) instructions regarding jury nullification, (4) motion for new trial—juror misconduct, (5) cumulative error

HELD: Prosecutor’s statement in summing up testimony about the alleged murder weapon, “This seems to be the shotgun, folks. I don’t think there’s a lot of question about that at this point,” was an impermissible personal opinion; but no reversible error in this case. Prosecutor’s statement that victim deserved jurors’ “consideration” was not error where statement’s context demonstrates that prosecutor was not attempting to invoke jury’s sympathy. Prosecutor’s statement, “Folks, if you’re convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged,” was not an impermissible misstatement of the law because it forbade jury nullification. A prosecutor’s closing argument is distinguished from court instructions.  

            Even if error is assumed in district judge’s failure to give sua sponte two reckless homicide instructions, no reversible clear error on facts in this case.

            District judge’s instructions to jury did not direct a verdict of conviction or prevent jury nullification, and were correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619 (2019).

            Under facts in this case, district judge did not abuse his discretion in finding no fundamental failure due to jury misconduct occurred in defendant’s trial.

            Errors found or assumed in this case did not cumulatively prejudice Pruitt and deprive him of a fair trial.   

STATUTE: K.S.A. 2018 Supp. 21-5109(b)(1), -5202(c)

Tags:  attorney discipline  Author: Patti Van Slyke  Butler District  Cherokee District Court  court reporter discipline  criminal law  criminal procedure  eminent domain  evidence  inverse condemnation  Johnson District Court  juries  jurisdiction  jury instructions  motions  postconviction remedies  sentences  statutes  trials 

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November 27, 2019 Digests

Posted By Administration, Monday, December 2, 2019

Kansas Supreme Court

criminaL

constitutional law—criminal procedure—motions—sentences
state v. bryant
wyandotte district court—affirmed
no. 118,848—november 27, 2019

FACTS: Bryant was convicted in 2005 of first-degree murder and aggravated robbery. Sentence imposed included criminal history calculated using three 1981 Missouri convictions for second-degree burglary as person felonies. Bryant filed 2014 motion to correct an illegal sentence, challenging the classification of his 1981 Missouri burglaries as person crimes. District court denied the motion. Bryant appealed, arguing subsequent changes in the law rendered his sentence illegal, and the district judge unconstitutionally engaged in fact-finding when he designated the 1981 Missouri convictions as person felonies.

ISSUE: (1) Motion to correct illegal sentence—out of state convictions

HELD: State v. Murdock, 309 Kan. 585 (2019)(Murdock II), forecloses Bryant’s argument that the sentence imposed is illegal due to subsequent changes in the law. Bryant failed to establish that his sentence was illegal at the time it was imposed, and he cannot use a motion to correct an illegal sentence to argue that his sentence is unconstitutional.   

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., 22-3504(1), -3504(3); K.S.A. 22-3504

constitutional law—criminal procedure—judges—trials 
state v. johnson
sedgwick district court—affirmed in part, reversed in part
court of appeals—reversed and remanded
no. 113,228—november 27, 2019

FACTS: Johnson convicted of criminal possession of a firearm, aggravated assault, and felony criminal discharge of a firearm. During afternoon recess once jury was seated, parties and the court agreed to Johnson’s evidentiary stipulation to a juvenile adjudication for an act that would constitute a felony if done by an adult. Trial began that same afternoon with the admission of exhibits and court rulings on objections. The next day, the trial judge acknowledged he had nodded off after State had begun its case-in-chief. Parties declined trial court’s invitation for motion to seek mistrial. On appeal, Johnson claimed in part the trial judge committed structural error and failed to obtain a valid jury waiver regarding Johnson’s stipulation. Court of Appeals, comparing a sleeping judge to one who was physically absent from the bench, reversed and found the trial judge committed structural error. Panel also found a jury waiver was unnecessary to Johnson’s stipulation to an element of the crimes charged. 53 Kan.App.2d 734 (2017). Review granted on these panel decisions.

ISSUES: (1) Structural error; (2) jury waiver

HELD: An isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal. While trial judge’s inattention in this case appears significant and serious, it is not reasonable to equate the judge’s nodding off to facts in cases involving a judge who physically left the bench. U.S. Supreme Court has not included a judge nodding off (or even a physically absent judge) in identifying the limited class of structural errors. And even in circumstances of actual judicial absence, some courts have refused to apply structural error. Case remanded to Court of Appeals to examine and rule upon in the first instance whether Johnson is entitled to relief based on trial court’s judicial misconduct, and for further consideration of all issues Johnson raised on appeal in light of today’s decision.

District court erred when it accepted Johnson’s elemental stipulation without first obtaining a knowing and voluntary jury trial waiver on the record.

STATUTE: K.S.A. 2013 Supp. 22-4905(b)(2)

Kansas Court of Appeals

Civil

HABEAS CORPUS—RETALIATORY CLAIMS
GRAMMER V. KANSAS DEPARTMENT OF CORRECTIONS
ELLSWORTH DISTRICT COURT—AFFIRMED
NO. 120,909—NOVEMBER 27, 2019

FACTS: While Grammer was incarcerated, the Kansas Department of Corrections seized several personal magazines from him. Grammer filed multiple appeals of these seizures through the KDOC administrative process. Grammer was successful in several appeals, but by the time rulings were made, the magazines had been thrown away and couldn't be returned to Grammer. Frustrated, Grammer sent a letter to the ACLU explaining about KDOC's magazine-seizure policy. The ACLU responded and initiated a correspondence which lasted for a few months. During this same time period, Grammer's sister asked KDOC to transfer Grammer from Hutchinson to Lansing, so that his ill and elderly mother could visit him. That request was granted. Grammer was housed on an upper level of the facility, and he filed a grievance claiming that accessing his living space aggravated his knee injury. Shortly thereafter, Grammer was transferred again, to Ellsworth. Grammer filed another grievance in which he claimed that this transfer was in retaliation for his complaints about his living quarters and his communication with the ACLU. After his grievances were denied, Grammer filed a K.S.A. 60-1501 petition. After hearing arguments from the parties, the district court denied the petition, finding that Grammer failed to prove that his facility moves were in retaliation for his grievances. Grammer appealed.

ISSUE: (1) Whether petition showed a prima facie case of retaliation

HELD: Prison officials may not retaliate against an inmate based on an inmate's exercise of protected rights. In this case, the district court correctly found that Grammer failed to prove that his transfers were made for retaliatory reasons. Although Grammer unquestionably engaged in a protected activity, there is no evidence that any of his facility transfers made it harder for him to engage in that activity. And although it was not required to do so, KDOC provided evidence of a legitimate reason for the transfers. For those reasons, the district court correctly denied Grammer's petition.

STATUTES: 42 U.S.C. §1983; K.S.A. 2016 Supp. 75-5206; K.S.A. 60-1501

 

criminal

constitutional law—criminal procedure—evidence—fourth amendment
state v. gonzalez
coffey district court—reversed and remanded
no. 119,212—november 27, 2019

FACTS: Gonzalez stopped for speeding and given a warning. Officer then employed “Kansas two step” to continue questioning and obtain consent to search the vehicle. Gonzalez filed motions to suppress drug evidence discovered in the search, claiming the officer unlawfully extended the traffic stop and lacked reasonable cause to search. He also claimed he was stopped on the basis of his race and other bias-based policing. District court denied the motions and convicted Gonzalez of drug offenses. On appeal Gonzalez challenged the district court’s denial of motions to suppress.   

ISSUE: (1) Search and seizure—traffic stop

HELD: District court erred in finding Gonzalez’ continued detention after conclusion of the lawful traffic stop was a consensual encounter. Under totality of circumstances test stated in State v. McGinnis, 290 Kan. 547 (2010), a reasonable person would not have felt free to refuse the request for additional information or otherwise end the encounter after the officer turned around and asked Gonzalez if he would answer a few more questions. Consensual indicators set forth in State v. Thompson, 284 Kan. 763 (2007), are stated and applied. Because evidence seized as a result of the illegal detention in this case must be suppressed, no need to address alternative claim that suppression is required because officer unlawfully used national origin as a basis to justify the traffic stop.

STATUTES: None

criminal law—evidence—statutes
state v. kane
sedgwick district court—affirmed
no. 119,749—november 27, 2019

FACTS: Kane robbed a restaurant by escorting an employee at gunpoint into the restaurant, and shooting the restaurant owner while leaving. Jury convicted him of aggravated robbery, aggravated burglary, aggravated battery, attempted first-degree murder, kidnapping, and criminal possession of a weapon. Kane appealed, arguing insufficient evidence supported two of his convictions because: (1) there was no credible evidence of premeditation, an element of attempted first-degree murder; and (2) his interactions with the employee forced at gunpoint from the dumpster into restaurant’s back door did not facilitate the robbery as required by K.S.A. 2018 Supp. 21-5408(a)(2).

ISSUES: (1) Sufficiency of the evidence—premeditation; (2) sufficiency of the evidence—kidnapping

HELD: State presented both direct and circumstantial evidence of Kane’s premeditation. Viewed in the light most favorable to the State, there was sufficient evidence presented at trial to support the attempted first-degree murder conviction.

Sufficient evidence supported Kane’s kidnapping conviction. State v. Buggs, 219 Kan. 203 (1976), interpreted what it meant to “facilitate” a crime under the kidnapping statute. Factors stated in Buggs, while not specifically articulated in the kidnapping statute, are binding. A court may find a taking or confinement has independent significance from another crime for purposes of the kidnapping statute not only when an act actually makes a crime substantially easier to commit but also when the act has the potential to do so, even if the defendant never received the anticipated benefit. It is the nature of the act, not its result, that is legally important. Here, moving the employee from a public alley to inside the restaurant substantially decreased the risk of detection. That the employee escaped almost immediately upon reentering the restaurant does not impact the significance of Kane’s actions.

STATUTE: K.S.A. 2018 Supp. 21-5408(a)(2),- 5420.

Tags:  Ellsworth District  kidnapping  premediation  search and seizure  Sedgwick District  traffic stop  Weekly20191203  Wyandotte District 

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November 22, 2019 Digest

Posted By Administration, Monday, November 25, 2019

Kansas Court of Appeals

 

Civil

ADOPTION—PARENTAL RIGHTS
IN RE ADOPTION OF E.D.
JOHNSON DISTRICT COURT—AFFIRMED
NO. 120,797—NOVEMBER 22, 2019

FACTS: Mother met E.D. while doing field work in Africa. She obtained a six-month visa so that E.D. could receive medical care in the United States. Mother adopted E.D. in 2011. The next year, Mother arranged for a couple she knew (Guardians) to parent E.D. while Mother traveled for work. They became E.D.'s legal guardians. Mother kept in contact with E.D. until 2014, when her communications became concerning and the Guardians limited Mother's contact with E.D. A court proceeding allowed Mother to have supervised visitation with E.D., but Mother only rarely exercised her visitation rights. The Guardians were concerned because E.D. was living in this country illegally. They attempted to work with Mother to start E.D.'s citizenship process but were unable to make any progress. The Guardians then filed a motion seeking the termination of Mother's parental rights so that they could adopt E.D. The district court granted both requests, and Mother appeals.

ISSUES: (1) Jurisdiction for the district court to terminate rights, (2) sufficiency of the evidence

HELD: The Guardians filed a single petition which sought both the termination of Mother's parental rights and permission to adopt E.D. The only issue identified in Mother's notice of appeal was the termination of her parental rights. There were no errors in the process related to the termination of rights and Mother's complaints to the contrary are without merit. Because Mother's notice of appeal did not identify any deficiency caused by the filing of the consent to adopt a day after the petition was filed, the court need not address that issue. There was sufficient evidence to support the district court's finding that Mother failed to assume a parental role in the two years prior to the adoption.

STATUTE: K.S.A. 2018 Supp. 59-2112(b), -2112(c), -2112(d), -2128(f), -2129(a), -2136(d)(1), -2136(h)(1), -2136(h)(2)

Tags:  adoption  jurisdiction  sufficiency of evidence  termination of rights 

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November 15, 2019 Digests

Posted By Administration, Monday, November 18, 2019

Kansas Supreme Court

Civil

DUTY OF AN EMPLOYER
REARDON V. KING
LEAVENWORTH DISTRICT COURT—COURT OF APPEALS IS REVERSED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 114,937—NOVEMBER 15, 2019

FACTS: King, who was a licensed attorney, was employed by Trust Company of Kansas. TCK had a policy prohibiting employees from practicing law during employment. Despite that policy, and without TCK's knowledge, King represented Marilyn Parsons, a TCK client, during his tenure with TCK. Once TCK learned of this work, TCK filed a complaint of suspected elder abuse and a disciplinary complaint. An investigation revealed that Parsons had paid King over $250,000 in fees during his TCK employment. King voluntarily surrendered his law license and Parsons filed suit against both King and TCK. A jury found TCK liable for "negligent training" and King liable for breach of fiduciary duty. TCK appealed and the court of appeals reversed, finding the evidence insufficient. The Supreme Court granted review.

ISSUE: (1) Adequacy of jury instructions

HELD: A crucial instruction must be the district court's articulation of the duty owed by the defendant to the plaintiff. Kansas law imparts a duty to employers whose employees injure a third party. The employer owes a duty of reasonable care under the circumstances to prevent harm by employees acting within the scope of their employment. Determining whether that duty has been breached is a fact question for the jury. It was clearly erroneous to instruct the jury that TCK had definable duties to "train" and "supervise" its employees. Because the duty was misstated, both the jury instructions and verdict form were erroneous and the case must be reversed.

STATUTES: No statutes cited.

 

HABEAS CORPUS
JAMERSON V. SCHNURR
RENO DISTRICT COURT – REVERSED AND REMANDED
NO. 120,233 – NOVEMBER 15, 2019

FACTS: Jamerson is in custody after a 2001 felony conviction. In 2016, Jamerson was resentenced after the district court recalculated his criminal history score. During the recalculation, the Kansas Department of Corrections withheld good time credits. This prompted Jamerson to file a K.S.A. 60-1501 petition challenging that good time credit decision. The district court summarily denied this petition, finding that Jamerson failed to prove error. Jamerson filed a posttrial motion in which he alleged that KDOC deprived him of dur process by failing to hold a hearing before depriving him of good time credits. Apparently in response, the district court held a hearing and amended Jamerson's good time credit award. Jamerson appealed the decision to the Secretary of Corrections. Jamerson's motion was still pending, though, and the district court considered the matter and denied it as unripe. That decision was affirmed by the court of appeals. In August 2017, Jamerson filed a second K.S.A. 60-1501 petition challenging KDOC's August 2016 good time credit calculation. This 2017 petition was dismissed as untimely and Jamerson appealed.

ISSUE: (1) Timeliness of petition

HELD: The district court's finding that Jamerson failed to exhaust administrative remedies is not supported by substantial evidence. Jamerson's grievance procedure remained pending until Jamerson received actual notice of the KDOC's final administrative decision. The evidence in the record on appeal shows that Jamerson timely filed his K.S.A. 60-1501 petition within 30 days of receiving notice of the final administrative decision, and the district court erred by summarily denying the petition.

STATUTES: K.S.A. 2018 Supp. 60-1501(b); K.S.A. 75-52,138, 60-1501

 

Kansas Court of Appeals

 

criminal

constitutional law—criminal law—fourth amendment—evidence—motions
state v. ellis
lyon district court—reversed and remanded
no. 120,046—november 15, 2019

FACTS: Welfare check requested regarding woman (Ellis) who had been in a convenience store bathroom for a long time. Ellis reported she had been dealing with stomach problems, and complied with officer’s instruction to come out of stall and to hand over driver’s license for identification purposes. Officer found no medical assistance was needed, but held Ellis’ license to run a background check which resulted in her arrest on outstanding warrant. Officers then searched Ellis’ purse, finding methamphetamine and paraphernalia. Ellis was arrested and convicted on drug charges. District court denied motion to suppress, finding Ellis had voluntarily handed over license, and even if officer’s conduct was illegal, discovery of the outstanding warrant independently justified the arrest under Utah v. Strieff, 579 U.S. __ (2016).  Ellis appealed, arguing the officer exceeded the scope of the welfare check by retaining her license and checking for warrants after concluding she did not need assistance.

ISSUE: Fourth Amendment—welfare check

HELD: Officer’s actions exceeded the scope of the authorized welfare check - the only constitutionally authorized encounter in this case. Ellis voluntarily providing identification did not relieve law enforcement of constitutional necessity of a reasonable and articulable suspicion before an investigation is permitted. Strieff is factually distinguished. No showing the attenuation doctrine applies in this case, and totality of circumstances warrant excluding evidence gained as a result of officer’s unlawful detention of Ellis.   

STATUTES: None

 

 

Tags:  Constitutional Law  Criminal Law  Duty of an Employer  Evidence  Fourth Amendment  Habeas Corpus  Leavenworth District Court  Lyon District Court  Motions  Reno District Court 

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November 8, 2019 Digests

Posted By Administration, Tuesday, November 12, 2019

Kansas Court of Appeals

 

criminal

constitutional law—criminal procedure—motions—trials —statutes
state v. HAMMERSCHMIDT
Ellis District Court—reversed and remanded
no. 120,016—november 8, 2019

FACTS: Hammerschmidt was charged with a misdemeanor DUI. He filed motion to suppress evidence from the stop, arguing he was not given proper notices before the breath test. He also referenced two pending decisions awaiting rehearing in Kansas Supreme Court. District court granted continuances on its own initiative, citing the pending rehearing decisions. 607 days after a motion to suppress was filed, and 360 days after State v. Nece, 306 Kan. 679 (2017) (Nece II), and State v. Ryce, 306 Kan. 682 (2017) (Ryce II), the district court denied the motion to suppress. Hammerschmidt filed motion to dismiss, alleging violation of speedy trial statute. District court granted that motion and dismissed the complaint. State appealed, arguing in part that K.S.A. 2018 Supp. 22-3402(g) bars dismissal.

ISSUE: Speedy trial statute

HELD: District court erred by dismissing the case on statutory speedy trial grounds. Hammerschmidt first requested delay in the case by filing motion to suppress, and that delay was originally attributable to him. Because the matter was taken under advisement for an unreasonable amount of time and because it was unclear if Hammerschmidt consented to the delay, district court later attributed the delay to the State. Although the delay here was several hundred days, the legislature removed the remedy of dismissal when a district court later attributes delays to the State that were originally attributable to a defendant. K.S.A. 2018 Supp. 22-3402(g). Hammerschmidt did not argue that prosecutorial misconduct precipitated the lengthy delay or that application of K.S.A. 2018 Supp. 22-3402(g) violated his constitutional speedy trial rights, and his statutory speedy trial claim is based on circumstances which expressly forbid dismissal on statutory speedy trial grounds.

STATUTE: K.S.A. 2018 Supp. 22-3402, -3402(b), -3402(g)

constitutional law - criminal procedure - evidence - fourth amendment - motions
state v. fisher
Sedgwick District Court—affirmed
no. 120,031—november 8, 2019

FACTS: Officers entered the house in response to a 911 call report that someone in the house had been shot. No injured person was found, but officers discovered Fisher with drugs in plain view. Fisher was charged with drug offenses. He filed a motion to suppress, claiming the officers lacked a lawful justification to enter the house because they failed to first ask the two women standing outside the house any clarifying questions or whether they were injured. District court denied the motion, finding the clearing of the house to find if someone was hurt or dying was not unreasonable under the circumstances. Fisher was convicted in bench trial on stipulated facts. He filed timely appeal.

ISSUE: Emergency aid exception to warrantless search

HELD: District court did not err in denying the motion to suppress. The emergency aid exception test stated in State v. Neighbors, 299 Kan. 234 (2014), is applied, but an Eleventh Circuit Court of Appeals case is identified as more factually similar to the present case. Officers had authority under the emergency aid exception to act until assured that no one needed assistance. The mere presence of people outside the house where gunshots were reported did not remove the officer’s reasonable basis to search the house for victims. The possibility of someone suffering from a gunshot wound inside necessitated an immediate search.

STATUTES: None

criminal procedure—sentences—statutes
state v. wilmore
shawnee district court—affirmed
no. 120,171—november 8, 2019

FACTS: Wilmore was convicted of two counts of indecent liberties with a child. On appeal, he claimed the district court imposed an illegal sentence in calculating criminal history by using two prior domestic battery cases that had been used in an earlier case to elevate the classification of a third domestic battering conviction to a felony.

ISSUE: Sentencing—criminal history calculation of prior domestic battery charges

HELD: Wilmore’s “double-counting” challenge is rejected for same reasons stated in numerous unpublished court of appeals decisions. District court did not violate K.S.A. 2018 Supp. 21-6810(d) in calculating Wilmore’s criminal history score. Wilmore’s alternative interpretation of the statute is unreasonable. Under court’s longstanding interpretation of K.S.A. 2018 Supp. 21-6819(d), the unambiguous statutory language does not prohibit a district court from aggregating prior domestic battery person misdemeanors to create a person felony for criminal history purposes even when those same domestic battery convictions were used in an earlier case to elevate a domestic battery charge from a misdemeanor to a felony.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6810(d)(10), -6811(a), 22-3504(1)
K.S.A. 2015 Supp. 21-6810(d)(9)

Tags:  Constitutional Law  criminal procedure  Ellis District Court  evidence  Fourth Amendment  motions  Sedgwick District Court  sentences  Shawnee District Court  statutes  trials 

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November 1, 2019 Digests

Posted By Administration, Monday, November 4, 2019

Kansas Supreme Court

 

Civil

JURISDICTION—WORKERS COMPENSATION
VIA CHRISTI HOSPITALS V. KAN-PAK, LLC
WORKERS COMPENSATION BOARD—COURT OF APPEALS IS REVERSED,
WORKERS COMPENSATION BOARD IS AFFIRMED
NO. 116,692—NOVEMBER 1, 2019
 

FACTS: Darin Pinion was severely burned while working at Kan-Pak. Via Christi provided medical care; his total bills exceeded $1 million. Kan-Pak's workers compensation insurance was provided by Travelers, who contracted with Paradigm to coordinate complicated cases. Paradigm paid only $136,451.60 of Pinion's considerable bill, under the 2011 Schedule of Medical Fees. For the 2011 Maximum Fee Schedule, language was added which allowed insurers to pay the lesser of the 70 percent stop loss calculation or the MS-DRG formula. It is unknown how the "lesser of" language ended up in the statute, as no one from the agency claimed knowledge of the addition. Via Christi requested reimbursement of 70% of Pinion's total bill. An ALJ found that the language in the regulation controlled and that it was without authority to ignore the "lesser of" language. The Board agreed and Via Christi appealed. The Court of Appeals reasoned that if no one at the agency knew that the "lesser of" language was added, that change was not properly promulgated and was ineffective. The Court of Appeals was unwilling to enforce an accidental rule, believing the outcome would be arbitrary and capricious. Paradigm's petition for review was granted.

ISSUES: (1) Jurisdiction, (2) effectiveness of the 2011 regulation

HELD: Jurisdiction exists to hear the merits of the case. The director of workers compensation is ultimately responsible for preparing the fee schedule. He is not a party to this action and the faulty rulemaking was not raised as a cause of action. The issue of rulemaking by the directoraccidental or otherwisewas never properly before the Board on appeal from the hearing officer. These proceedings were initiated as a fee dispute under a narrowly-drawn statute. It was not arbitrary or capricious to follow a plainly-worded regulation and enforce it as written.

STATUTES: K.S.A. 2018 Supp. 44-510i, -510j, 77-603(a), -614, -614(b), -614(c), -621(c), -621(c)(8); K.S.A. 44-556, 77-602(j), -606

 

criminal

constitutional law—criminal procedure—juveniles—speedy trial
state v. owens
sedgwick district court—affirmed; court of appeals—affirmed
No. 115,441—november 1, 2019

FACTS: 17-year-old Owens charged with juvenile offenses related to stealing a car at gunpoint. Six months later, the juvenile case was dismissed and Owens was charged with aggravated robbery, criminal use of a weapon and criminal deprivation of property. Jury convicted him as charged in trial that began some 19 months after his arrest. Owens appealed, claiming in part the delay between his arrest and trial violated his constitutional right to a speedy trial. Court of appeals affirmed in an unpublished opinion, finding right to speedy trial attached upon filing of the adult criminal charges, and the 13-month delay from that point until Owens’ trial was presumptively prejudicial. Review granted on Owens’ speedy trial claim that the delay was 19 rather than 13 months, and on State’s cross-petition alleging the panel erred in finding the length of delay presumptively prejudicial.

ISSUE: (1) Speedy trial

HELD: The federal and state constitutional right to a speedy trial applies to juvenile offender proceedings under the Revised Kansas Juvenile Justice Code, citing State v. Robinson, 56 Kan. App. 2d 567 (2018)(filed after briefs submitted in present case). Thus the delay in bringing Owens to trial was more than 19 months. Factors in Barker v. Wingo, 407 U.S. 514 (1972), are applied, finding no violation of Owens’ constitutional speedy trial rights. A presumption of prejudice arose from the length of a delay that was excessive given the relative simplicity of the case, but reasons for the delay weigh against Owens under facts in this case. While he complained about the delay, evidence supports that he wanted his attorney to seek consolidation of his cases and that these efforts resulted in some delay. And Owens made no showing he was prejudiced by the delay. Judgment of court of appeals affirming the district court is affirmed.

STATUTES: K.S.A. 2018 Supp. 22-3402(g), 38-2301 et seq., K.S.A. 2012 Supp. 22-3208(7); K.S.A. 20-3018(b)

 

Kansas Court of Appeals

criminal

constitutional law—criminal procedure—discovery—evidence—sanctions
state v. auman
douglas district court—affirmed
No. 120,438—november 1, 2019

FACTS: While turning left with sun in his eyes, Auman hit a motorcyclist he had not seen. State charged him with aggravated battery while driving under the influence of alcohol and prescribed medications, and made repeated requests to police department for evidence. On Friday before Monday trial that was scheduled at the last date within speedy trial statute, dashcam videos were obtained and disclosed to the defense. In part, Auman filed motion to dismiss, arguing Brady violation because videos were produced too late to investigate three identified witnesses at the scene and comments between two officers that would tend to show the sun’s glare, not intoxication, caused the collision. Given State’s delay in providing information and video’s potential exculpatory value, compounded by the speedy trial issue, district court dismissed the criminal case. State appealed, claiming the district court abused its discretion in taking such drastic action.

ISSUE: Duty to disclose evidence favorable to the defense

HELD: District court’s dismissal of the case is affirmed. Due Process Clause does not force a defendant to bear burden of a lack of cooperation between prosecutor and law enforcement, which in this case resulted in the eleventh-hour disclosure of potentially exculpatory information that was within State’s possession since Auman’s collision. State could have waited to file case until it received all discovery information from law enforcement, or—through cooperative efforts of prosecutors and law enforcement—could have arranged for all discovery to be provided within time frame ordered by district court.

STATUTES: K.S.A. 2018 Supp. 8-1567(a), 21-5107(d), - 5413(b)(3)(A), 22-3212(i); K.S.A. 2015 Supp. 21-5413(b)(3)(A)

Tags:  constitutional law  criminal procedure  discovery  Douglas County Court  evidence  jurisdiction  juveniles  sanctions  Sedgwick District Court  speedy trial  Workers Compensation  Workers Compensation Board 

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October 25, 2019 Digests

Posted By Administration, Monday, October 28, 2019

Kansas Supreme Court

 

Civil

DAMAGES—PRODUCTS LIABILITY
CORVIAS MILITARY LIVING, LLC V. VENTAMATIC, LTD. AND JAKEL, INC.
GEARY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART
DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, REMANDED WITH DIRECTIONS
NO. 116,307—OCTOBER 25, 2019

FACTS: Corvias is a construction firm specializing in military housing. Corvias built thousands of units near Fort Riley. In these homes, it installed bathroom ceiling fans manufactured by Ventamatic, Ltd. and Jakel Motors, Inc. After installation, several fans caught fire and damaged homes. Corvias not only incurred damage with fire remediation, it also needed to replace all of the fans in other units, so it filed suit. The district court granted summary judgment to both defendants, finding that the suit was unquestionably a products liability claim governed by the Kansas Product Liability Act. The court ruled that all of Corvias' claims for damages was barred by the economic loss doctrine. The Court of Appeals reversed the grant of summary judgment on the issue of fire damage, finding that the fans were not an integral part of the house as a whole. But the panel did not address whether Corvias had an implied warranty claim covering whether the fans were inherently dangerous. Both defendants filed a petition for review, which was granted.

ISSUE:  (1) Recovery under the KPLA

HELD: The KPLA covers all product liability causes of action. That Act included liability for "damage to property", which shows that the Legislature intended to allow recovery for damage to any property, even the product itself. The Kansas economic loss doctrine does not preclude recovery for property damage within a product liability cause of action. Corvias' costs for fan replacement are undisputedly economic losses, and therefore not compensable under the KPLA. But the KPLA does not subsume all other legally viable causes of action for loss recovery. Corvias brought an action for unjust enrichment. The record is insufficient to show whether that claim can succeed, so the case is remanded.

STATUTE: K.S.A. 60-3302(c), -3302(d), -3302(d)(1)

 

Criminal

CRIMINAL THREAT—CONSTITUTION
STATE V. BOETTGER
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 115,387—OCTOBER 25, 2019
 

FACTS: One evening, Boettger was visiting with the employees of a convenience store. He was lamenting the fact that he had found his daughter's dog in a ditch after it had been shot. Boettger was upset that the sheriff's department would not investigate. Boettger told one employee that if he found the perpetrator they "might find themselves dead in a ditch somewhere." The employee who heard the remarks knew Boettger and his speaking style and was not concerned. Another employee, who knew Boettger very well, was closely related to a detective with the sheriff's department. Boettger, who was visibly angry, approached this man and said that he would "end up finding [his] dad in a ditch." The employee was concerned and ultimately called the police to report the incident. Boettger denied any intent to threaten or cause harm, but he was still convicted of one count of reckless criminal threat. Boettger appealed, but the Court of Appeals confirmed his convictions. Boettger's petition for review was granted.

ISSUE: (1) Whether K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad

HELD: Some tension can arise when the government attempts to criminalize true threats. An important inquiry centers on the speaker's intent to intimidate and cause fear. In order to be constitutional, the statute must require more than a purpose to communicate just threatening words. Instead, it must also require that the speaker wants the recipient to believe that the speaker intends to act violently—an intent to intimidate or convey a threat. K.S.A. 2018 Supp. 21-5415, which allows an individual to be punished for reckless conduct, potentially criminalizes protected speech and is facially overbroad. Boettger's conviction under that statute must be reversed.

STATUTES: U.S. Const. amend. I; K.S.A. 2018 Supp. 21-5415(a)(1)

 

FIRST-DEGREE MURDER—JURY INSTRUCTIONS
STATE V. DEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,568—OCTOBER 25, 2019

FACTS: Dean was accused of firing his weapon while at a crowded party in revenge for the death of his fellow gang member. After the shooting was over, Dean was charged with one count of premeditated murder, four counts of aggravated battery and one count of criminal possession of a firearm. During deliberations, the presiding juror brought in a personal notebook which contained notes that were taken outside of the trial. The district court dismissed this juror and questioned the rest of the panel, all of whom denied taking notes or seeing notes from another juror. As he was leaving, the removed panel member gave a partially completed verdict form to the bailiff. It is unknown what the form said, but after seeing it defense counsel moved for a mistrial, which was denied. Dean was convicted as charged. He appeals.

ISSUES: (1) Necessity of a mistrial, (2) cautionary instruction, (3) motion for new trial, (4) evidence of premeditation, (5) admissibility of evidence of gang affiliation

HELD: Because the partially completed verdict form is not in the record on appeal, there is no way to know its impact on the jury. Dean had the burden to designate a record adequate to show error. In that absence, he is not entitled to relief. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is potentially benefitting from the testimony. Defendant's cross-examination showed the witness' potential bias to the jury. The district court did not err by finding that evidence regarding the cooperating witness' arrangement was neither newly discovered nor material. And Dean's failure to provide the new evidence in the record on appeal precludes review. Premeditation involves forming the intent to kill beforehand. In this case, the State presented sufficient evidence of premeditation. The gang affiliation evidence presented at trial was relevant and not unduly prejudicial, especially in light of the mitigating instruction given by the district court.

STATUTES: K.S.A. 2018 Supp. 22-3412(c), -3501(l); K.S.A. 22-3423(1)(c), 60-401(b)

 

CRIMINAL THREAT—CONSTITUTION
STATE V. JOHNSON
MONTGOMERY DISTRICT COURT—COURT OF APPEALS IS REVERSED DISTRICT
COURT IS REVERSED, CASE REMANDED
NO. 116,453—OCTOBER 25, 2019

FACTS: Johnson's mother contacted law enforcement with claims that Johnson was abusing her. A deputy responded to her home and noticed signs of a struggle, but Johnson was not at the residence. A return visit occurred the next day after Johnson's mother claimed that he made statements in which he threatened to either harm or kill her. Johnson was charged with one count of criminal threat—for allegedly tearing a telephone off of the wall and threatening to burn down his mother's home and kill her. At trial, both Johnson's mother and wife testified that within their family it was common to threaten to kill each other, but that they never actually meant it. Johnson was also injured and in pain, causing frequent angry outbursts. A jury convicted Johnson of criminal threat. He appealed, and the Court of Appeals affirmed his conviction and Johnson's petition for review was granted.

ISSUES: (1) Sufficiency of the evidence, (2) constitutionality of K.S.A. 2018 Supp. 21-5415(a)(1)

HELD: The State charged Johnson with either intentionally or recklessly making a criminal threat. The jury was instructed on both mental states but was not asked to specify under which state Johnson was convicted. But the State presented sufficient evidence to convict Johnson under either theory. The government can only regulate "true threats." The "reckless disregard" provision of K.S.A. 2018 Supp. 21-5415(a)(1) encompasses more than true threats and thus potentially punishes constitutionally protected speech. It is unconstitutionally overbroad. Even though Johnson was potentially convicted for intentional behavior, the unconstitutionality of the reckless disregard provision is prejudicial enough that Johnson's conviction must be reversed.

DISSENT: (Stegall, J.) The majority is correct that K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad. But the error is not prejudicial under a modified harmlessness analysis, and his conviction should be affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5202(c), -5415(a)(1)

Tags:  constitution  criminal threat  damages  Douglas District Court  first degree murder  Geary District Court  jury instructions  Montgomery District Court  product liability  Sedgwick District Court 

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