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December 7, 2018 Digests

Posted By Administration, Tuesday, December 11, 2018

Kansas Supreme Court

 

criminal:



constitutional law—criminal law—criminal procedure—evidence—
fourth amendment—search and seizure —statutes
state v. hubbard
douglas district court—affirmed; court of appeals—affirmed
No. 113,888—december 7, 2018

FACTS: Hubbard answered officer’s knock on apartment door. Based on smell of marijuana, officers ordered everyone to leave the apartment, and then conducted security sweep to ensure no one remained inside. Search warrant obtained and executed, finding drug evidence. Hubbard convicted of possession of marijuana and drug paraphernalia. He appealed claiming  drug evidence should have been suppressed because: (1) the initial warrantless entry into his apartment for a security sweep was illegally premised on officer’s report of smelling raw marijuana while standing at the front door; and (2) officer’s suppression-hearing testimony about smelling raw marijuana odor was inadmissible expert testimony. Court of appeals affirmed in unpublished opinion, finding smell of marijuana provided probable cause to believe that crime had been committed, that apartment held evidence of that crime, and that sweep of the apartment was justified by need to preserve evidence. Review granted.

ISSUES: (1) Motion to suppress, (2) opinion testimony

HELD: On facts found by district court, the smell of marijuana provided probable cause, and threat of evidence destruction was an exigent circumstance. To the extent drug  evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion. United States Supreme Court cases addressing relationship between odors and probable cause are reviewed.

            District court did not err by admitting officer’s testimony about smelling raw marijuana as lay opinion. State v. Sasser, 305 Kan 1231 (2017), is reviewed, similarly finding in this case that officers’ opinions that they smelled raw marijuana, based on their perception and specialized training, qualified as lay opinion admissible under K.S.A. 2017 Supp. 60-456(a).  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissents from majority’s result and rationale. Would hold the district judge applied the wrong legal standard in admitting and considering the officers’ suppression-hearing testimony, treating their expert opinions on the source of the odor they perceived as facts. Subsection (b) of K.S.A. 2017 Supp. 60-456, is controlling, rather than subsection (a). Would also hold district judge’s conclusion, that sweep was justified by existence of probable cause and exigent circumstances, erroneously relied in part upon absence of State evidence. Would reverse the convictions, vacate the sentence, and remand to district court for new evaluation of the motion to suppress.

STATUTES: K.S.A. 2017 Supp. 60-456, -456(a), -456(b); K.S.A. 2015 Supp. 60-456; K.S.A. 20-3018(b), 22-3216(2), 60-419, -2101(b)

 

 

constitutional lawcriminal lawfourth amendment
search and seizuresentencingstatutes
state v. parker
sedgwick district court—affirmed on issues subject to review;
court of appeals—affirmed on issues subject to review
No. 112,959—december 7, 2018

FACTS: Officer in unmarked car activated his red and blue emergency lights and “wig wag” lights in attempt to stop vehicle driving without lights after dark, and observed driver’s furtive movements toward console as vehicle continued without stopping. Vehicle eventually pulled into grocery store parking lot where driver (Parker) exited and locked the vehicle. Officer arrested Parker who refused consent to search of the vehicle. Parker then waited in police car approximately an hour for K9 unit to arrive and alert on the vehicle. Drug charges filed based on evidence found in subsequent search of vehicle’s console. Parker filed motion to suppress, challenging the duration of the stop and alleging incrimination statements were made in violation of Miranda. District court denied the motion. Jury convicted Parker as charged. On appeal, Court of appeals remanded on Parker’s Batson jury selection claim, but affirmed on claims challenging: (1) district court’s refusal to suppress evidence; (2) sufficiency of the evidence supporting the feeing or eluding offense because the police vehicle was not properly marked; and (3) the use of Parker’s prior crimes to enhance the sentence. Review granted on these three claims.

ISSUES: (1) Continued seizure of Parker and the vehicle, (2) sufficiency of the evidence on fleeing, (3) sentencing

HELD: The seizure of Parker was lawful—the initial seizure of his person did not violate Fourth Amendment, and his extended holding in the police car did not make his seizure unlawful. Applying test for property seizure, on record in this case, the vehicle was not seized between the time Parker exited and locked it and the time of the K9 alert, and Parker was not deprived of a possessory interest in the vehicle after his arrest while it sat locked in a public parking lot.  

            Statutory challenge to K.S.A. 2018 Supp. 8-1568 is rejected. Officer was driving an unmarked car outfitted with standard police equipment and lights which were activated to stop Parker who did not stop for a considerable period. Sufficient evidence was presented to support the fleeing conviction.

            Sentencing claim defeated with no departure from decisions rejecting this same claim.

CONCURRENCE AND DISSENT (Johnson, J.): Dissents on the suppression issue, finding no factual or legal support for majority’s holding that the vehicle was not continually seized after Parker’s arrest. Disagrees that seizure of the stopped vehicle ended when Parker exited and locked it. Would hold that State unlawfully detained Parker’s vehicle beyond the time and detention warranted by the totality of the circumstances, requiring reversal of conviction based on the ensuing unlawful search.

STATUTES: K.S.A. 2017 Supp. 5-1568, -1568(a)(1), -1568(d), -1568(e)(2), 22-2901(1); K.S.A. 2012 Supp. 8-262(a)(1), -1568(a), -1568(c)(1), 21-5706(a), -5706(c)(1); K.S.A. 8-1548, -1703, 20-3018(b), 60-2101(b)

 

 

constitutional law—criminal law—criminal procedure—evidence—
Fifth Amendment—search and seizure
state v. regelman
geary district court—affirmed in part—reversed in part—remanded;
court of appeals—affirmed in part—reversed in part
No. 116,398—December 7, 2018

FACTS: Officers conducting a welfare check smelled raw marijuana at Regelman’s front door. Officers ordered Regelman to remain outside while search warrant was obtained, and handcuffed him to prevent him from putting hands in his pockets. Search warrant affidavit included incriminating statements Regelman made. Execution of the warrant disclosed drug related items inside a thick wooden box by a couch, several feet from front door. Regelman arrested and Miranda rights given for first time. Regelman filed motion to suppress. District court granted the motion, finding Regelman’s statements about drug use occurred during questioning in violation of Miranda. District court further held the smell of marijuana by itself does not provide probable cause for a search, and good-faith exception to the exclusionary rule did not apply. State filed interlocutory appeal. Court of appeals affirmed in unpublished opinion. State’s petition for review granted.

ISSUES: (1) Statements about drug use, (2) marijuana odor and probable cause

HELD: Regelman’s drug use statements are scrutinized under Fifth Amendment. Miranda warnings were required when questioning of Regelman turned into a custodial interrogation by ordering him to stop walking away and either sit on the steps or in a patrol car. The search warrant affidavit contained this unlawfully obtained information, but under State v. Fisher, 283 Kan. 272 (2007), the affidavit as a whole is not invalid if it supplied a substantial basis for finding probable cause without the unlawfully obtained information.

            State v. Hubbard (decided this same date), held the totality of circumstances surrounding a police officer’s detection of the smell of raw marijuana emanating from a residence can provide probable cause to believe the residence contains contraband or evidence of a crime. District court holding to the contrary was error as a matter of law. Applying Fisher, even without the drug-use statements, information remaining in the affidavit provided a substantial basis for finding a fair probability that evidence of a crime would be found in the home. Affirmed in part, reversed in part, and remanded for further proceedings.

CONCURRENCE (Beier, J.): Concurs in the result because Regelman made no effort to challenge admission of officer’s testimony at the suppression hearing on the basis that he was not qualified to give an expert opinion on the existence or strength of the odor of raw marijuana. Does not concur in majority’s rationale, which turns a blind eye to gatekeeping requirement under K.S.A. 2017 Supp. 60-456(b).

DISSENT (Johnson, J., joined by Rosen, J.): Agrees with Justice Beier’s criticism of majority’s rationale, but cannot concur with majority’s result. Would affirm district court’s suppression of the evidence. Because this case involved the long-range detection of odor of raw marijuana in a closed container, questions whether State could make the required foundation for the officer’s testimony by establishing the officer was in a position that would rationally allow him to perceive odor of raw marijuana.

STATUTES: K.S.A. 2017 Supp. 60-456(a), -456(b); K.S.A. 20-3018(b), 22-3216(2), 60-2101(b)

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November 30, 2018 Digests

Posted By Administration, Monday, December 3, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF TEMPORARY SUSPENSION
IN RE DAVID P. CRANDALL
NO. 117,910—NOVEMBER 30, 2018

FACTS: A hearing panel of the Board of Discipline of Attorneys found that Crandall violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(b) (communication), 1.5(a) (fees), 1.7(a) (concurrent conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice). An inquiry into Crandall's conduct began when a client wrote the Disciplinary Administrator questioning the reasonableness of Crandall's fees. Around the same time, a district court judge reported Crandall after most of the fees that he requested in a probate matter were rejected. An inquiry into Crandall's fees showed that he was either inexperienced or was doing work in an attempt to justify fees which were substantially higher than those charged by other attorneys in the area.

FACTUAL FINDINGS: Crandall challenged many of the findings made by the hearing panel. The Kansas rules of attorney discipline give the court disciplinary jurisdiction over Kansas-licensed attorneys even if the behavior occurs outside of Kansas. Crandall's failure to follow Supreme Court Rule 6.02 and the Rules of Evidence, which apply in attorney discipline proceedings, means his constitutional and evidentiary issues were not preserved for appeal. There was clear and convincing evidence that Crandall's fees were excessive given the amount of time and labor expended. In representing another client, Crandall's personal interest in having his fee paid conflicted with his duty to advise his client. And he charged an unreasonable fee when the value of the estate decreased significantly while the probate case was pending.

HEARING PANEL: The hearing panel noted Crandall's multiple rule violations, which it attributed to a selfish motive. The panel also noted Crandall's "angry and condescending" tone that was used through disciplinary proceedings. A majority of the hearing panel recommended a 6-month suspension. A minority would recommend a 1-year suspension.

HELD: A majority of the court agreed with the hearing panel and imposed discipline of a 6-month suspension. A minority of the court would have imposed a lesser sanction.

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN RE BRANDON W. DEINES
NO. 119,111—NOVEMBER 30, 2018

FACTS: The Disciplinary Administrator filed a formal complaint against Deines in 2017. He did not file an answer and was temporarily suspended in September 2017. A hearing panel determined that Denies violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.1 (b) (failure to respond to a disciplinary authority), and Rules 207(b) (failure to cooperate in a disciplinary investigation) and 211(b) (failure to file an answer in a disciplinary proceeding). A complaint was filed after multiple instances where Deines failed to act on behalf of his clients, resulting in dismissed cases and harm to his clients.

HEARING PANEL: The temporary suspension was sought because Denies' inaction caused significant harm to his clients. In addition, Deines' failure to participate in the disciplinary process made it difficult to investigate. The panel acknowledged that Deines' behavior was a result of his depression. The Disciplinary Administrator asked for an indefinite suspension. Because Deines' behavior was caused by his depression the hearing panel recommended a 2-year suspension.

HELD: Denies failed to respond to the hearing panel's report and failed to attend the formal hearing on the complaint. The court considered this absence an additional aggravating factor. For that reason, the court imposed an indefinite suspension rather than the 2-year suspension recommended by the hearing panel.

Criminal

constitutional law–criminal procedure–sentences–statutes
state v. Hayes
johnson district court—affirmed
No. 117,341—november 30, 2018

FACTS:  Kansas Supreme Court affirmed Hayes’ conviction of premeditated first-degree murder for a 2010 shooting death, but vacated the hard 50 sentence as unconstitutional and remanded for resentencing. State v. Hayes, 299 Kan. 861 (2014). On remand, district court applied 2013 amended legislation now codified at K.S.A. 2017 Supp. 21-6620, to again impose an enhanced hard 50 sentence. Hayes appealed, claiming retroactive application of K.S.A. 2017 Supp. 21-6620 violated the Ex Post Facto Clause. 

ISSUE: Retroactive Application of 2013 Amendments to K.S.A. 21-6620

HELD: Because the 2013 amendments to the sentencing provisions of K.S.A. 21-6620 are procedural in nature and do not change the legal consequences of acts completed before its effective date, the retroactive application of those sentencing procedures do not violate the Ex Post Fact Clause of the United States Constitution.  Hayes’ invitation to reverse rulings in State v. Bernhardt, 304 Kan. 460 (2016), State v. Robinson, 306 Kan. 431 (2017), and State v. Lloyd, 308 Kan. 735 (2018), is declined. 

STATUTES: K.S.A. 2017 Supp. 21-6620; K.S.A. 2015 Supp. 21-6620; K.S.A. 2013 Supp. 21-6620; K.S.A. 2010 Supp. 22-3717(b)(1); K.S.A. 21-4635, -4706(c)

criminal law- evidence - jury instructions - motions - statutes
State v. Ingham
reno district court—affirmed
court of appeals—affirmed
No. 111,444—november 30, 2018

FACTS: Ingham convicted of possession or use of a commercial explosive. On appeal he claimed: (1) district court erred by denying motion in limine to prevent State from using “pipe bomb” and “improvised explosive device” to describe the beer-can bomb; (2) a sheriff deputy improperly testified his opinion that Ingham combined lawfully obtained items to make an illegal improvised explosive device; (3) a jury instruction wrongfully reworded the statutory definition of “commercial explosive” by equating it to an “improvised explosive device;” (4) trial court should have sua sponte instructed jury on the definition of a consumer firework; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Motion in Limine; (2) “Commercial Explosive” Testimony; (3) Instruction on Elements of Criminal Use of Explosives; (4) Consumer Firework Definition Instruction; (5) Cumulative Error

HELD:  Ingham failed to show that the use of words at issue was improper or that it unfairly prejudiced his defense. No abuse of district court’s discretion in allowing prosecution to use words and phrases that correctly and accurately described Ingham’s explosive device. 

Assuming without deciding that deputy’s statement was close enough to testimony that Ingham was guilty of the charged crimes, and assuming this error was of constitutional dimension, the error was harmless under facts in this case.

The challenged instruction moved beyond informing jury what the State was required to prove and informed jury that State had proved an improvised explosive device was a commercial explosive. This was error, but under facts in case, the error was harmless.

No error found in district court’s omission of an unrequested instruction that defined a consumer firework. Nothing in the record would have led jury to believe that Ingham’s beer-can explosive was a consumer firework, either in terms of construction or intended usage. 

The errors and assumed errors did not affect the two possible jury choices in this case, and even taken in their cumulative effect, did not prejudicially affect the jury’s verdict.

CONCURRENCE (Nuss, C.J.): Affirms Ingham’s conviction, but departs from majority’s rationale regarding the motion in limine. Would hold the district court abused its discretion by allowing repeated references to the “I.E.D.” that Ingham had constructed. Under facts in case, however, cumulative effect of errors is still harmless.

CONCURRENCE (Biles, J., joined by Stegall, J.): Agrees the conviction must be affirmed but would hold: district court did not abuse its discretion in denying the motion in limine; no error in the elements instruction on criminal use of explosives; and the one assumed error of opinion testimony regarding the beer can bomb provides no basis for cumulative error.

CONCURRENCE (Stegall, J.):  Agrees with court’s judgments, but registers doubts about statute under which Ingham was convicted. Would welcome briefing on whether K.S.A. 2017 Supp. 21-5814(a)(1) is too vague, indefinite, or overbroad to survive constitutional scrutiny. 

DISSENT (Johnson, J., joined by Luckert and Beier, JJ.): Would reverse and remand for a fair trial. Takes exception to majority’s cavalier disregard of the inflammatory connotation associated with the term I.E.D. Would find district court abused its discretion in denying motion in limine, and the error was compounded by deputy’s opinion testimony which improperly stated a legal conclusion on unlawfulness. Scales of justice were further tipped by instruction which erroneously equated “improvised explosive device” with “commercial explosive.” Criticizes majority for engaging in impermissible judicial fact-finding or mere supposition in determining a consumer firework definition instruction was not factually appropriate in this case. Agrees the omission of that instruction was not clearly erroneous, but submits the factual record did not preclude it.

STATUTES: K.S.A. 2017 Supp. 21-5814(a)(1), -5814(c)(2), 60-456; K.S.A. 2012 Supp. 21-5601(b)(1), -5814(a)(1), -5814(a)(2)

criminal procedure—sentences—statutes
state v. rice
wyandotte district court—reversed and remanded
No. 117,322—november 30, 2018

FACTS: Rice’s 1992 conviction for first-degree premeditated murder and hard 40 sentence were affirmed on appeals. Some twenty years later, Rice appealed from his unsuccessful attempt to seek collateral relief on a claim of ineffective assistance of counsel. Court of Appeals affirmed the conviction but found ineffective assistance during the penalty phase. Sentence vacated and remanded for a new penalty phase hearing and resentencing. At resentencing, district court ordered a life sentence with possibility of parole after 15 years. Two months later Rice filed pro se motion to modify or reduce his sentence, arguing he should have been given an updated PSI that accounted for his failing physical condition. He also argued the court could have ordered probation. District court denied modification, holding that Rice received the only sentence available under the law and that his motion for a new PSI was rendered moot. Rice appealed claiming: (1) district court had jurisdiction to modify or reduce his sentence and that reduction is mandatory with a recommendation from the Secretary of Corrections; and (2) district court erred in concluding that probation was not an available option.

ISSUES: (1) Jurisdiction to Modify or Reduce the Sentence on Remand; (2) Availability of Probation

HELD: Statutes applicable to Rice’s motion to modify his pre-KSGA sentence are reviewed. The re-sentencing court was correct in not modifying Rice’s sentence to a lesser term of years, but under State v. Sargent, 217 Kan. 634 (1975), if secretary of corrections unequivocally recommended reducing Rice’s life sentence to a term of years, the court would have to modify it unless best interest of the public would be jeopardized or Rice’s welfare would not be served by the reduction. As to whether the re-sentencing court was required to order an updated PSI that may have resulted in a facility recommendation that Rice should serve a lesser sentence, there is precedent for finding no error in district court’s refusal to do so.

Court of Appeals vacated Rice’s original sentence, so on remand the district court was imposing Rice’s sentence anew. Probation is a possibility for a person convicted of a Class A felony. The 2016 resentencing court abused its discretion by not understanding its own authority and being unable to consider exercising it. On remand for resentencing, district court should exercise its discretion to consider probation on the record.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 21-4701 et seq.; K.S.A. 1992 Supp. 21-3401, -3401(c), -4602(3), -4603 et seq., -4603(2), -4603(4), -4604(1), 22-3717(b); K.S.A. 21-4501(a) (Ensley 1988)

appeals—courts—criminal law—criminal procedure—evidence—jury instructions—motions
state v. sims
wyandotte district court—affirmed
No. 115,038—November 30, 2018

FACTS: Sims convicted of premeditated first-degree murder and criminal possession of a firearm. On appeal he challenged: (1) district court’s denial of motion for mistrial after State witnesses violated orders in limine prohibiting mention of Sims’ battery; (2) the sequential ordering of jury instructions for degrees of homicide; (3) district court’s failure to give a limiting instruction to accompany Sims’ stipulation to a prior felony conviction; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Mistrial, (2) Ordering Language in Instructions, (3) Prior Felony Limiting Instruction, (4) Cumulative Error

HELD: On facts of case, district court did not abuse its discretion when it denied Sims’ motion for mistrial. State witnesses made three brief, cryptic references to material prohibited by orders in limine; and the judge recognized the errors and issued a curative admonition in one instance and moved the trial immediately to other topics in the second and third instances.

The simultaneous consideration rule in State v. Graham, 275 Kan. 831 (2003), and the exception to that rule as recognized in State v. Bell, 280 Kan. (2005), are reviewed. Bell’s mutual exclusivity test is problematic, and the simultaneous consideration rule in Graham is is overruled. In this case, the district court’s instructions were legally appropriate.

Even if evidence in a stipulation to a prior felony conviction is subject to K.S.A. 2017 Supp. 60-455 and its requirement that a district judge give a limiting instruction, the failure to give such an instruction in this case was not clear error.

Errors discerned or assumed in this case were discrete and did not compound one another. On the record presented, the totality of circumstances did not prejudice Sims or deprive him of a fair trial.

CONCURRENCE (Beier, J., joined by Lukert and Johnson, JJ.): Concurs with the result and all rationale but for majority’s reasoning regarding sequential and simultaneous jury consideration of degrees of homicide. Agrees that Bell and following cases are infected with a logical fallacy and would overrule them, but would not overrule Graham. Would hold the ordering language in the district court’s instructions was error, but not reversible error standing alone or under the cumulative error doctrine.

STATUTES: K.S.A. 2017 Supp. 22-3414(3), 60-455; K.S.A. 2012 Supp. 21-5109(b); and K.S.A. 22-3423, -3423(c)

constitutional law—criminal law—evidence—jury instructions—statutes
state v. williams
sedgwick district court—affirmed
court of appeals—affirmed
No. 108,394—november 30, 2018

FACTS: Williams forcibly entered residence of a woman he had been dating and where Williams had spent some nights the previous two weeks. Jury convicted him on charges of aggravated burglary, aggravated battery, aggravated assault, and domestic battery. Williams appealed. Court of Appeals affirmed in unpublished opinion. Review granted on six claims as reordered and combined by the court: (1) insufficient evidence supported his aggravated burglary conviction; (2) the aggravated burglary and domestic battery convictions were inconsistent and mutually exclusive; (3) district court erroneously instructed jury on aggravated assault when it told jury the State had to prove Willams used “a deadly weapon, a baseball bat;” (4) district court failed to instruct on lesser included offenses of assault and battery; (5) Kansas’ aggravated battery statute, K.S.A. 2011 Supp. 21-5413(b)(1)(B), is unconstitutionally vague; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the Evidence, (2) Mutually Exclusive Verdicts, (3) Jury Instruction - Aggravated Assault, (4) Jury Instruction - Lesser Included Offenses, (5) Constitutionality of Statute, (6) Cumulative Error

HELD: No authority supports argument that authority to enter is a property right tied to status of Williams’ residence. Aggravated burglary statute does not require State to prove (or disprove) a burglar’s residence. Whether Williams and the victim both had a property interest in the residence is a closer question because no direct evidence about property interests of the two parties, but there was circumstantial evidence the victim had to give permission for Williams to enter and that he recognized or acquiesced in victim’s right to exclude him. Sufficient evidence presented that Williams entered the house without authority.

Court of Appeals’ elements approach is a valid method for determining if verdicts are mutually exclusive. Under facts in case, Williams did not establish mutually exclusive verdicts.

District court did not err in setting out State’s claim that Williams used baseball bat as a deadly weapon. State v. Sutherland, 248 Kan. 96 (1991), and State v. Sisson, 302 Kan. 123 (2015), are reviewed. Here, district court did not explicitly state a baseball bat is a deadly weapon, but rather stated what the State had to prove. State v. Ingham (this day decided) is distinguished. District courts are cautioned in constructing this type of instruction.

District court erred in failing to instruct on assault and battery as lesser included offenses of aggravated assault and aggravated battery. Instructions on the lesser included offenses were legally appropriate, and under standard in State v. Haberlein, 296 Kan. 195 (2012), were factually appropriate. On facts in this case, however, no clear error.

K.S.A. 2011 Supp. 21-5413(b)(1)(B) is not unconstitutionally vague. Individuals of ordinary intelligence can understand what is meant by “can be inflicted” language. Court of Appeals’ reasoning in cases rejecting constitutional challenges to the statute is approved.

Cumulative effect of the two instructional errors did not deny Williams a fair trial.

CONCURRENCE (Rosen, J., joined by Nuss, C.J. and Stegall, J.): Agrees the convictions should be affirmed, but disagrees with majority’s opinion that district court was required to instruct jury on the lesser included offenses. Consistent with his concurring and dissenting opinions in cases relating to application of K.S.A. 22-3414(3), no error in not instructing jury on lesser included offenses of misdemeanor battery and misdemeanor assault.

CONCURRENCE (Johnson, J., joined by Beier, J.): Would hold the district court’s aggravated assault elements instruction was erroneous, but even if jury had been clearly told to find the baseball bat met the definition of a deadly weapon, the result would have been the same.

STATUTES: K.S.A. 2017 Supp. 20-3018(b), 22-3414(3), 60-261; K.S.A. 2011 Supp. 21-5109(b), -5412, -5413(b)(1)(B), -5414, -5414(c)(1), -5807(b); and K.S.A. 77-201, - 201, Twenty-third

Court of Appeals

Criminal

criminal procedure—probation—sentences—statutes
state v. jones
reno district court—vacated and remanded
No. 118,268—November 30, 3018

FACTS: Jones convicted of failing to register as a drug offender. Prison term imposed with a 24-month period of post-release supervision, and a dispositional departure for 36 months probation. Probation revoked in 2014. Revocation sentence pronounced from bench was 51-month prison term with no mention of post-release supervision, but journal entry of probation revocation ordered 85-month prison term with 24-months post-release supervision. Jones appealed. Court of Appeals ordered remand, finding the sentence effective when pronounced from the bench. On remand, district court filed journal entry nunc pro tunc ordering 51-month prison term with 24-month post-release supervision. Jones filed motion to correct an illegal sentence, arguing the post-release supervision term should be vacated. District court denied the motion. Jones appealed, arguing in part for first time that district court’s silence on the postrelease supervision term at the revocation hearing constituted a lawful modification of her sentence under K.S.A. 2017 Supp. 22-3716(b). Supplemental briefing ordered on what effect, if any, K.S.A. 2017 Sup. 21-6804(e)(2)(C) had on the appeal. 

ISSUE:  (1) Probation Revocation Sentence; (2) K.S.A. 2107 Supp. 21-6804(e)(2)(C)

HELD:  Based on State v. McKnight, 292 Kan. 776 (2011), State v. Sandoval, 308 Kan. 960 (2018), and State v. Roth, 308 Kan. 970 (2018), district court erred when it later included a 24-month post-release supervision term in the journal entry. Although the district court may not have intended to vacate the postrelease provision term upon revoking Jones’ probation, the court was authorized to do so and the new lawful sentence was effective when pronounced from the bench.

K.S.A. 2017 Supp. 21-6804(e)(2)(C) does not apply to a sentence that is lawfully modified at a probation revocation hearing under K.S.A. 2017 Supp. 22-3716(b) because a postrelease supervision term is not required by law as part of the sentence when the district court sentences a defendant anew after revoking probation. Here, the district court imposed a lawful lesser sentence of a 51-month prison term with no post-release supervision period. This sentence was effective when pronounced from the bench at the revocation hearing and cannot later be modified.

STATUTES:  K.S.A. 2017 Supp. 21-6804(e)(2)(C), -6805(e)(2)(C), 22-3504, -3716(b), -3716(d)(1)

Tags:  Attorney Discipline  Johnson District  Reno District  Rice District  Sedgwick District  Wyandotte District 

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November 21, 2018 Digests

Posted By Administration, Monday, November 26, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF ROSIE M. QUINN
NO. 119,148—NOVEMBER 21, 2018

FACTS: Quinn was found to be in violation of KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty or fitness). She was convicted of multiple federal felonies after failing to pay income taxes. Quinn's law license was temporarily suspended after she self-reported the convictions. While that disciplinary proceeding was pending, Quinn asked to have her status changed to disability inactive status. That request was granted, with the understanding that Quinn was required to obtain an independent mental health evaluation. Quinn failed to obtain that evaluation and as a result, her license was transferred back to a temporary suspension.

HEARING PANEL: The hearing panel noted Quinn's history of discipline and the nature of her convictions. The panel also cited Quinn's mental health issues and reputation in her community as mitigating factors. The disciplinary administrator's office recommended that Quinn be indefinitely suspended with the suspension made retroactive to three years prior to the date of the final hearing report. The hearing panel noted that Quinn presented compelling evidence of rehabilitation and relied heavily on the mitigating evidence in recommending that Quinn's license be suspended for three years, with that suspension made retroactive to October 5, 2011. The hearing panel believed that Quinn should be eligible for reinstatement without further proceedings.

HELD: The court adopted the hearing panel's findings and conclusions. The only question for the court to consider is whether Quinn should be required to undergo a reinstatement hearing before being allowed to return to practice. A majority of the court held that Quinn should be indefinitely suspended with an effective date of October 2011. Before being reinstated, Quinn must complete various tasks including a bar exam review course and continuing legal education hours. A minority of the court would have disbarred Quinn.

Civil

ADMINISTRATIVE LAW—TENURE
HARSAY V. UNIVERSITY OF KANSAS
DOUGLAS DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED
NO. 114,292—NOVEMBER 21, 2018

FACTS: The University of Kansas hired Harsay to a tenure-track position in 2004. She began the tenure review process in 2009. Peer reviewers were hesitant to give unqualified recommendations for tenure; there were concerns about insufficient scholarship activities leading to an inability to secure funding. Nevertheless, the department-level committee recommended that Harsay receive tenure. The College Committee disagreed and voted to reject Harsay's application. That decision was ratified by the University Committee. Harsay appealed to the university but the chancellor upheld the decision to deny tenure. Harsay filed a timely petition for judicial review, but it was dismissed for failure to prosecute. Using the savings statute, Harsay refiled the action. The district court denied on the merits Harsay's challenge to the university's decision. The court of appeals reversed, noting inaccuracies in the College Committee's report and expressing concerns about the adequacy of the university's factual findings. The university's petition for review was granted.

ISSUES: (1) Savings statute; (2) substantial evidence

HELD: Provisions of the Code of Civil Procedure can apply to actions taken under the KJRA. And the plain language of K.S.A. 60-518 allows it to apply to any action. Although the reports of various tenure committees were short on details and contained errors, there is adequate support in the record as a whole for the ultimate decision to deny tenure to Harsay.

CONCURRENCE (Goering, D.J. assigned): There is substantial evidence in the record as a whole to support the university's decision on Harsay's tenure application. But the panel erred by finding that K.S.A. 60-518 can apply to cases brought under the KJRA.

STATUTES: K.S.A. 2017 Supp. 77-613, -621(c)(4), -621(c)(7), -621(c)(8), -621(d); K.S.A. 60-518

Criminal

constitutional law—criminal law—Fourth Amendment—statutes
state v. Evans
dickinson district court—affirmed and remanded
No. 119,458—November 21, 2018

FACTS: An officer conducted a warrantless search of Evans’ purse and wallet after an ambulance took Evans from auto accident scene. Evans was arrested and charged with drug offenses after officer found methamphetamine and drug paraphernalia in zippered pocket of the wallet. Evans filed motion to suppress, alleging the search violated the Fourth Amendment. State argued the warrantless search was valid under the plain-view exception and the officer’s administrative caretaking function of locating Evan’s driver’s license to complete an accident report. District court disagreed and granted the motion to suppress. State filed interlocutory appeal.

ISSUES: (1) Warrantless search—community caretaking function, (2) warrantless search— duty to complete accident report

HELD: District court’s judgment was affirmed. The caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Both Cady v. Dombrowski, 413 U.S. 433 (1973), and South Dakota v. Opperman, 428 U.S. 364 (1976), support caretaking/ inventory searches conducted under standard police procedures. Here, no evidence established the standard procedures of the police or county sheriff’s office. Accordingly, Dombrowski, Opperman and related cases do not support State’s contention that the search of Evan’s purse and wallet fits a well-delineated exception to the warrant requirement.

State v. Canaan, 265 Kan. 835 (1998), which relied on plain view and inventory search exceptions to the warrant requirement, did not create a new exception allowing a search simply because officers have a duty to complete the accident report. State failed to meet burden of establishing the inventory exception, and under facts in this case the drug evidence was not in plain view. Nor did the circumstances present an exigency or an emergency that required immediate verification of Evans’ identity or give rise to the emergency doctrine exception. Kansas statutes allow drivers a reasonable time to produce their own driver’s license, and legislature did not impose a duty on officers that would justify invading privacy guaranteed by Fourth Amendment.

STATUTES: K.S.A. 2017 Supp. 8-1604, -1611, -1611(a), -1611(a)(2), -1612, -1612(a), -1612(b), 22-3603; K.S.A. 8-244, 20-3018(c)

criminal law—criminal procedure—evidence—
jury instructions—prosecutors—statutes
state v. haygood
wyandotte district court—affirmed
No. 115,591—november 21, 2018

FACTS: A jury convicted Haygood of premeditated first-degree murder and criminal possession of a firearm. On appeal he claimed error in the admission of his long-term girlfriend’s testimony about prior domestic violence, and the denial of his request for jury instructions on the affirmative defense of self-defense and the lesser-included offense of involuntary manslaughter. Haygood also claimed the prosecutor, in closing argument, misstated the facts or law, argued facts not in evidence, commented on witness credibility, and attempted to shift the burden of guilty to the defendant.

ISSUES: (1) Admission of K.S.A. 60-455 evidence, (2) prosecutorial error in closing argument, (3) instructions on self-defense and involuntary manslaughter

HELD: Three-part test in State v. Gunby, 282 Kan. 39 (2006), is stated and applied, finding the trial court did not err in admitting the prior domestic violence evidence to show motive.

Prosecutor’s comments and arguments contained facts that were either placed in evidence or that were reasonably inferred from trial evidence. Although some statements were inarticulately phrased, prosecutor did not misstate the law. No burden-shifting was implied from State’s closing argument, and no merit to claim that prosecutor impermissibly accused Haygood of lying.

In light of K.S.A. 2017Supp. 21-5108(c), as amended in 2010, Haygood was entitled to an instruction on self-defense affirmative defense because his testimony was competent evidence that could allow a reasonable juror to conclude he was entitled to defend with deadly force. District court erred by denying Haygood’s request for an instruction on self-defense, but the error was harmless in this case. Likewise, even if an involuntary manslaughter lesser included offense instruction is assumed to be factually appropriate, the failure to give a lesser included offense instruction was harmless error.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Stegall, J.): Concurs with the result but departs from majority’s reasoning regarding the self-defense instruction. Disagrees that a defendant’s solitary declaration that he or she committed a crime in self-defense will always satisfy the competent evidence standard described in K.S.A. 2017 Supp. 21-5108(c). Also disagrees with majority’s suggestion that the 2010 statutory provision meaningfully impacts this analysis. Under facts in this case, no rational fact-finder could reasonably conclude that Haygood acted in self-defense. Would find no error in trial court’s denial of a self-defense instruction.

STATUTES: K.S.A. 2017 Supp. 21-5108(c), -5222, -5405(a)(4); K.S.A. 21-5108

criminal procedure—jury instructions—statutes
state v. pulliam
wyandotte district court—affirmed
court of appeals—affirmed
No. 113,493—November 21, 12018

FACTS: Pulliam was convicted of voluntary manslaughter (of Eisdorfer), second-degree murder (of Burton), and criminal possession of a firearm. He appealed, claiming in part the jury should have been instructed on a theory of imperfect self-defense involuntary manslaughter as a lesser included crime for the charge of second-degree murder. Court of appeals affirmed, holding such an instruction was not factually appropriate because State v. Houston, 289 Kan. 252 (2009), required an unintentional killing for involuntary manslaughter, and there was no evidence Pulliam’s killing of Burton was unintentional. Pulliam’s petition for review granted on this one issue.

ISSUE: Jury instruction on lesser included offense of imperfect self-defense involuntary manslaughter

HELD: Court of appeals’ decision is affirmed, but on a different rationale. Pulliam’s jury instruction claim was reviewed for clear error in this case. Court of appeals’ decision relied on outdated law because Houston was based on an earlier version of the crime defining statute. The amended involuntary manslaughter statute and a new culpable mental states statute, K.S.A. 2017 Supp. 21-5202, govern this case. Conviction of involuntary manslaughter under an imperfect self-defense manslaughter theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a reckless or unintentional killing. On evidence in this case, a lesser included offense instruction on the imperfect self-defense form of involuntary manslaughter was legally and factually appropriate. District court erred in not giving it, but no clear error found. Pulliam’s second-degree murder conviction is affirmed.

STATUTES: K.S.A. 2017 Supp. 21-5109(b)(1), -5202(a)-(j), -5203(b), -5402(a)(2), -5405(a)(1)-(4), 22-3414(3); K.S.A. 21-3201, -3201(b)-(c), -3404(c), -3761(a)(2)

Tags:  administrative law  Attorney Discipline  constitutional law  Dickinson District  Douglas District  evidence  fourth amendment  jury instructions  statutes  tenure  Wyandotte District 

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November 16, 2018 Digests

Posted By Administration, Monday, November 19, 2018

Kansas Supreme Court

CRIMINAL

criminal procedure—restitution—sentences
state v. martin
Leavenworth district court—judgment vacated and case remanded; court of appeals—reversed
no. 115,651—november 16, 2018

FACTS:  Martin was charged with offenses related to false charges and threatening behavior against a woman and child Martin lived with while the woman’s military husband was deployed. Martin pled nolo contendere to two counts of interfering with law enforcement by falsely reporting a crime, and State dismissed all remaining counts. Sentence imposed included $10,800 restitution order. Martin appealed, claiming in part the district court erred in not granting her request for a separate hearing to challenge the restitution to resolve discrepancies in woman’s and husband’s victim impact statements, and to determine if claimed expenses ($30-40,000) were directly related to Martin’s crime of conviction. Court of Appeals affirmed, finding Martin was present at two sentencing hearings which included the issue of restitution. Martin’s petition for review granted.

ISSUE:  Restitution

HELD:  A convicted criminal defendant has a statutory right to have a hearing on the question of restitution, if desired. Under facts in this case, district court should have given Martin a separate hearing on the restitution issue. District court specifically denied Martin an opportunity at the sentencing hearings to be heard on the restitution causation issue. District court also failed to limit the claims to damages caused by Martin’s crimes, and instead summarily held the appropriate amount of restitution as set forth by victims exceeded Martin’s ability to pay. Reversed and remanded for district court to conduct a restitution hearing consistent with holding in State v. Meeks, 307 Kan. 813 (2018).

STATUTE:  K.S.A. 2017 Supp. 21-6607(c)(2), 22-3424(d)(1) - 3424(e)(3)

Kansas Court of Appeals

CRIMINAL

constitutional law—criminal law—fourth amendment—statutes
state v. lees
sumner district court—affirmed
no. 119,052—november 16, 2018

FACTS:  Highway trooper stopped Lees’ car for having a left rear brake light out.  The stop resulted in Lees’ arrest for DUI and operating a vehicle without a court ordered ignition lock.  Lees filed motion to suppress all evidence obtained through an illegal stop, arguing his functioning center and right rear brake lights satisfied K.S.A. 8-1708(a) which require two working brake lights.  State argued the trooper’s mistake about the brake lights was objectively reasonable, and stop was lawful under the trooper’s inspection power as authorized in K.S.A. 8-1759a.  District court granted the motion, finding the trooper had no legal grounds to stop Lee’s vehicle whose brake lights complied with Kansas law, and the trooper’s mistake of law in this instance was not objectively reasonable.  District court also found K.S.A. 8-1759a did not authorize the stop.  State filed interlocutory appeal.

ISSUES:  (1) Fourth Amendment—traffic stop; (2) statutory inspection authority

HELD:  Trooper made a mistake of law on whether Lees committed a traffic infraction for brake light violation. In light of 10 year-old holding in Martin v. Kansas Dept. of Revenue, 285 Kan. 625 (2008), trooper’s mistake was not objectively reasonable. This traffic stop was an unreasonable seizure in violation of Fourth Amendment, and exclusionary rule requires suppression of evidence resulting from the illegal stop. 

K.S.A. 8-1579a authorizes a trooper to stop a vehicle for inspection and to issue a written notice of defect to the driver only if the vehicle is in unsafe condition or if any required equipment is missing or is not in proper repair or adjustment.  District court correctly found this authority does not extend to equipment that is outside what is already required by statute. 

STATUTE:  K.S.A. 8-1705, -1706, -1708, -1708(a), -1721, -1721(a), -1721(b), -1722, 1759, -1759a, -1759a(a), -1759a(b), -1759a(c), -1759a(d), 22-2402(1)

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November 2, 2018 Digests

Posted By Administration, Monday, November 5, 2018

Kansas Court of Appeals

CIVIL

CONSTITUTIONAL LAW—FEDERAL PREEMPTION—PUBLIC UTILITIES—STATUTES
STATE v. BNSF RAILWAY COMPANY
CHASE DISTRICT COURT—REVERSED
NO. 118,095—NOVEMBER 2 , 2018

FACTS: District court convicted Burlington Northern Santa Fe (BNSF) of violating K.S.A. 66-273 for blocking a roadway in Chase County for approximately four hours. The statute prohibits trains from standing on a public road in or near a city or town for more than 10 minutes. BNSF appealed on issues including whether the Kansas statute is preempted by the federal Interstate Commerce Commission Termination Act (ICCT) and the Federal Railroad Safety Act.

ISSUE: Federal preemption of state law

HELD: The ICCTA pre-empts K.S.A. 66-273. BNSF’s conviction is reversed as a matter of law.  ICCT created the Surface Transportation Board (STB), giving it jurisdiction to regulate railroad transportation. While no court has addressed whether federal law preempts K.S.A. 66-273 or its predecessors, nearly all federal and state courts have concluded that state laws regulating how long a train can block a railroad crossing, and civil claims for alleged violations of state anti-blocking statutes, are preempted because they specifically target railroad operations.  Likewise, K.S.A. 66-273 infringes upon the exclusive jurisdiction of the STB because the statute specifically targets railroad carriers and has more than a remote or incidental effect on railroad operations.  

STATUTES: 49 U.S.C. §§ 1001 et seq. and 10501(a)-(b) (2016); K.S.A. 66-273, -274

MUNICIPALITIES—PROPERTY
JAYHAWK RACING PROPERTIES V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,035—NOVEMBER 2, 2018

FACTS: In 2006, the City issued $10 million in Sales Tax and Revenue Bonds to finance improvements to Heartland Park racetrack. At the time the bonds were issued, the City owned Heartland Park in fee simple for a term of years, subject to Jayhawk Racing's reversionary interest. When the bonds failed to produce adequate revenue, the City indicated a desire to purchase Jayhawk Racing's reversionary interest in the property so that the City owned the facility outright. It was anticipating that this purchase would also be financed by the issuance of STAR bonds. But after an election changed the composition of the Topeka City Council, the City decided not to pursue the STAR bond sale. Without STAR bonds, there was no funding for the purchase of Jayhawk Racing's reversionary interest. Jayhawk Racing sued the City for breach of contract. The district court granted the City's motion for summary judgment, finding that the City could not bind its successors to issue STAR bonds. Jayhawk Racing appealed.

ISSUES: (1) Nature of the contract; (2) enforceability of the contract; (3) cash-basis laws

HELD: Municipal corporations have both governmental and proprietary capacities. The contract to purchase Jayhawk Racing's reversionary interest was a proprietary contract akin to a purchase agreement. Because the contract is proprietary, future City Councils were bound by the agreement. The district court erred when it focused only on the method of funding. The contractual provision which provided for the issuance of bonds is an exception to the Cash-Basis and Budget Laws.

STATUTES: K.S.A. 2017 Supp. 10-1116(a); K.S.A. 10-1112, -1119, 12-3013(e)(1), 79-2935

PATERNITY—PROBATE
IN RE ESTATE OF FECHNER
GEARY DISTRICT COURT—VACATED AND REMANDED
NO. 118,809—NOVEMBER 2, 2018

FACTS: Chad Fechner died in 2014, intestate and with only one living heir, his aunt, Rita Young. She opened a probate estate and was surprised when Gary Fechner filed a claim alleging that he was Chad's half uncle. Rita questioned the accuracy of the birth certificate that Gary put forth as proof; there had been prior suggestions that Chad's father was the product of an extramarital affair, which would mean he did not share DNA with Gary. Rita asked the district court to order Gary to undergo DNA testing to prove his biological relationship to Chad. Gary objected, claiming there was no authority to order DNA testing in a probate case. The district court agreed, disallowed the DNA testing, and relied on Gary's evidence in proclaiming him an heir. Rita appealed.

ISSUE: (1) Ability to order DNA testing in a probate case

HELD: If Gary truly is the brother of Chad's father, he would be an heir under the probate code. The probate code defines "children" as "biological children" or as children whose parentage has been determined under the Kansas Parentage Act. The Kansas Parentage Act allows for biology, adoption, or a determination under the Parentage Act. In this case, there is no way to initiate a Parentage Act case because Chad's father died many years ago. The Code of Civil Procedure allows for DNA testing in a probate case. But the district court must make Parentage Act and Ross findings about whether such testing is warranted. The district court's mistake of law about its ability to order testing was an abuse of discretion. That court should reconsider Rita's request.

STATUTES: K.S.A. 2017 Supp. 23-2209(a), -2212(a), 60-235(a)(1), -235(a)(2); K.S.A. 59-501(a), -504, -508, -2212

JURISDICTION
ALLISON V. STATE
MONTGOMERY DISTRICT COURT—DISMISSED
NO. 114,607—NOVEMBER 2, 2018

FACTS: Allison was convicted of serious felonies, and his convictions were affirmed on direct appeal. He then filed a motion for K.S.A. 60-1507 habeas corpus relief, claiming that trial counsel was ineffective. The district court appointed counsel for Allison and held an evidentiary hearing. At the conclusion of that hearing, the district court denied Allison's motion, finding that trial counsel was constitutionally sufficient. Allison docketed an appeal and then asked for a remand to the district court under State v. Van Cleave so that he could argue that his K.S.A. 60-1507 counsel was ineffective. After the hearing, the district court concluded that Allison was prejudiced by ineffective counsel at his K.S.A. 60-1507 hearing, and that the only remedy was to hold a new hearing on that motion. The State appealed that ruling.

ISSUE: (1) Jurisdiction

HELD: It is undisputed that ruling being appealed here is not a final decision. It did not dispose of the entire merits of the issue at hand—whether Allison's trial counsel was ineffective. The hearing on the Van Cleave remand was only an intermediate step. Because the ruling is not final, the court lacks jurisdiction to hear the appeal at this time. The appeal is dismissed.

STATUTES: K.S.A. 2017 Supp. 60-1507(d), -2102(a)(4), -2102(c); K.S.A. 60-1507

CRIMINAL

CONSTITUTIONAL LAW—CRIMINAL LAW—FOURTH AMENDMENT—SEARCH AND SEIZURE
STATE v. RITCHEY
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 118,905—NOVEMBER 2, 2018

FACTS: Ritchey was arrested for an outstanding warrant while sitting as a front-seat passenger in a parked van. After Ritchey was out of the van and handcuffed, officer searched purse Ritchey left in the van and found drug residue. Ritchey was charged with possession of methamphetamine. She filed a motion to suppress, arguing the drug evidence was found during an illegal search of her purse. District court granted the motion, finding search of Ritchey’s purse was neither a search incident to arrest nor an inventory search. State filed interlocutory appeal, arguing the search was incident to the arrest, and even if illegal, the evidence would have been inevitably found during an inventory search at the jail. State also argued suppression did not advance purpose of the exclusionary rule.

ISSUE: Warrantless search of purse

HELD: District court properly suppressed evidence from the purse because State failed to show any exception for a warrantless search. Officers’ search of the purse was not a valid search incident to a lawful arrest where the purse was not on Ritchey’s person, there was no threat that Ritchey could use any weapons in her purse against the officers, and no possibility the purse contained evidence of her crime of arrest—an outstanding warrant. Next, applying rationale in State v. Baker, 306 Kan. 585 (2017), no showing that items within the closed purse would have inevitably been discovered where there was no evidence that police had policy to take items like the purse into possession for safekeeping, and no evidence the purse was sent along with Ritchey to the jail. Finally, State’s argument that suppression of the evidence in this case did not serve purpose of the exclusionary rule is rejected.

STATUTE: K.S.A. 2017 Supp. 22-3603

Tags:  114607  118035  118095  118809  118905  Chase District  Geary District  Montgomery District  Shawnee District  Weekly11062018 

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October 26, 2018 Digests

Posted By Administration, Monday, October 29, 2018

Kansas Supreme Court

CIVIL

ESTOPPEL—INSURANCE
BECKER V. THE BAR PLAN MUTUAL INSURANCE COMPANY
JOHNSON DISTRICT COURT–Remanded
COURT OF APPEALS—REVERSED
NO. 113,291— OCTOBER 26, 2018

FACTS: Becker made a series of loans to a business and hired Seck and Associates, a law firm, to help him with that process. The business faced financial difficulties and Becker claimed that Seck failed to find that the business' collateral was already subject to a properly filed security interest. After the business failed and the owner sought bankruptcy protection, Becker initiated proceedings against Seck's malpractice insurance carrier. Becker asked the Bar Plan, Sack's insurer, for a policy limits settlement offer of $300,000. The Bar Plan denied Seck's claim for coverage, pointing to her failure to timely notify the insurance company about a pending claim. Seck confessed judgment in excess of $3 million and assigned to Becker any right to sue the Bar Plan. Becker did sue, claiming bad faith. But the district court granted summary judgment to the Bar Plan and the court of appeals affirmed. Becker's petition for review was granted.

ISSUE: (1) Reservation of rights and estoppel;

HELD: Both the district court and court of appeals erred by focusing on the "expansion of coverage" rule. The courts should have instead determined whether estoppel was appropriate under the reservation of rights rule. The Bar Plan could have satisfied its duty to defend while also preserving any defenses of noncoverage through a timely reservation of rights. In this case, there are genuine issues of material fact regarding whether Bar Plan timely reserved its rights. Accordingly, summary judgment was inappropriate and the case must be remanded for further findings of fact.

STATUTE: K.S.A. 60-256

criminal 

criminal procedure—motions—sentencing—statutes
state v. alford
sedgwick district court—affirmed
No. 117,270—october 26, 2018

FACTS: Alford was convicted in 1993 of first-degree murder, aggravated kidnapping, and unlawful possession of a firearm. State v. Alford, 257 Kan. 830 (1995). In 2016 he filed pro se motions to correct an illegal sentence. He claimed trial court violated K.S.A. 1993 Supp. 21-4624(3) by permitting sentencing jury to consider murder victim’s written statement regarding an earlier aggravated battery, which was improper hearsay testimony in violation of due process and right of confrontation. He also claimed jury was wrongly instructed it needed to reach a unanimous verdict on the hard 15 sentence in violation of K.S.A. 1993 Supp. 21-4524(5). District court summarily denied the motions. Alford appealed on both claims. 

ISSUE: Motion to correct an illegal sentence

HELD: Neither of Alford’s claims fits within the narrow definition of an illegal sentence, thus cannot be raised in a motion to correct an illegal sentence. Alford’s hearsay argument relies on K.S.A. 1993 Supp. 21-4624(3)—a subsection devoted to establishing evidentiary rules—which does not qualify as the relevant statutory provision implicating an illegal sentence. And Alford’s unanimity claim is defeated by State v. Allison, 306 Kan. 80 (2017).

STATUTES: K.S.A.  2017 Supp. 22-3631; K.S.A. 1993 Supp. 21-4624(3), -4624(5); K.S.A. 22-3414(3), -3504, -3504(1)

constitutional law—criminal procedure—evidence—juries—prosecutors
state v. williams
wyandotte district court—affirmed
No. 116,690—october 26, 2018

FACTS: William was convicted of first-degree premeditated murder and criminal possession of a firearm. On appeal he claimed: (1) prosecutor’s closing remarks improperly called William’s testimony a fabrication; (2) State’s peremptory strikes of two jurors, and trial court’s overruling William’s claim of racial discrimination, violated Williams’ rights under Batson v. Kentucky, 476 U.S. 79 (1986); (3) trial court erred in allowing overly gruesome autopsy photographs during testimony of State forensic pathologist; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial misconduct, (2) Batson challenge, (3) gruesome photographs, (4) cumulative error

HELD: Under facts in this case, prosecutor’s comments about Williams’ trustworthiness were within proper bounds. In context, prosecutor was advancing reasonable inferences based on physical evidence which supported the suggestion that Williams’ testimony was unbelievable. 

Second and third steps in Batson challenge are discussed. Under circumstances in this case, trial court did not abuse its discretion by concluding the prosecutor had a valid, race-neutral reason to strike each juror.  

Autopsy photos in this case were graphically illustrative and unpleasant to view, but were not offered solely to inflame the jurors’ passions or prejudice.

Cumulative error claim is defeated by absence of any error. 

STATUTES: K.S.A. 2017 Supp. 21-5402, -6304, 22-3601(b)(4); K.S.A. 60-2101(b)

 

Tags:  113291  116690  117270  estoppel  insurance  Johnson District  Sedgwick District  Weekly10302018 

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October 19, 2018 Digests

Posted By Administration, Tuesday, October 23, 2018

Kansas Court of Appeals

CIVIL

PARENTAGE—STANDING—STATUTORY INTERPRETATION
OSBORN V. ANDERSON
BOURBON DISTRICT COURT—REVERSED AND REMANDED
NO. 118,982—OCTOBER 19, 2018 

FACTS: Although he was not the biological father, Osborn signed a voluntary acknowledgement of paternity for A.O. Osborn and is also listed as A.O.'s father on the birth certificate. Osborn married A.O.'s mother, but the relationship quickly soured and the marriage was annulled. Sadly, A.O. was later killed by Mother's new boyfriend. Osborn filed a wrongful death petition against the boyfriend and DCF officials. Mother and DCF sought dismissal, claiming that Osborn lacked standing because he was not A.O.'s biological father. The district court agreed and summarily dismissed Osborn's suit for lack of standing. Osborn appealed.

ISSUES: (1) Standing; (2) authority to challenge paternity

HELD: Osborn has standing to pursue a wrongful death action only if he is A.O.'s legal father. The annulment between Osborn and Mother did not revoke Osborn's prior acknowledgement of parentage. In the absence of a timely, separate action to revoke the VAP, Osborn's acknowledgement of parentage remains valid even after the annulment. There is no statutory authority that would allow DCF to challenge Osborn's paternity.

STATUTE: K.S.A. 2017 Supp. 23-2204, -2204(b)(1), -2208(a), -2209(a), -2209(b), -2209(e), -2210(a); K.S.A. 60-1902

CHILD IN NEED OF CARE—JURISDICTION
IN RE K.L.B.
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 118,563—OCTOBER 19, 2018

FACTS: Mother brought K.L.B. and another child to Kansas from Kentucky. After being in Kansas for a week, the children were taken into State custody. Mother did not contest the allegations in the child in need of care petition. After Kentucky declined jurisdiction over the children, Mother requested a hearing under the Uniform Child Custody Jurisdiction and Enforcement Act to find out why. Mother was eventually extradited back to Kentucky on criminal charges. Her parental rights were terminated, and Mother appealed.

ISSUES: (1) Jurisdiction under the UCCJEA; (2) sufficiency of the evidence

HELD: There is no evidence that Kentucky ever attempted to initiate child in need of care proceedings for these children. But even in the absence of prior proceedings, Kansas could not acquire initial child-custody jurisdiction under the UCCJEA because Kansas was not the children's home state. However, the facts show that Kansas acquired jurisdiction on an emergency basis. Once Kentucky declined jurisdiction, Kansas was free to continue with this action. The district court's decision to terminate Mother's parental rights was supported by clear and convincing evidence and termination was in the children's best interests.

STATUTE: K.S.A. 2017 Supp. 23-37,102(b), -37,102(l), -37,201, -37,204, -37,204(a), -37,204(b), -37,204(c), 38-2203(b), -2250, -2269(a), -2269(b), -2269(c), -2271

ABUSE OF DISCRETION—CHILD IN NEED OF CARE
IN RE P.J.
SUMNER DISTRICT COURT—AFFIRMED
NO. 119,264—OCTOBER 19, 2018

FACTS: P.J. and siblings came in to State custody after they showed signs of neglect and Mother had unexplained injuries that were consistent with aggravated battery. Mother's children were temporarily removed from her and placed in the care of their respective fathers. The children were adjudicated to be in need of care and left in the care of their fathers. Mother appealed this dispositional order.

ISSUES: (1) Standard of review; (2) sufficiency of the evidence

HELD: There is little precedent to suggest the appropriate standard of review to use when reviewing a dispositional hearing. Because the issues considered at a dispositional hearing are components of a best interests of the child finding, an abuse of discretion standard of review is appropriate. The evidence from the hearing showed that the children were doing fine in placements with their fathers and that the continued placement was appropriate. Because the children are placed with a parent, the district court is not required to decide about reintegration with Mother.

STATUTE: K.S.A. 2017 Supp. 38-2201(b), -2250, -2252, -2253, -2255, -2255(a), -2255(b), -2255(c), -2255(e), -2256, -2257, -2264, -2264(j), -2269

Tags:  abuse of discretion  Bourbon District  Child in Need of Care  parentage  Sedgwick District  statutory interpretation  Sumner District 

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October 12, 2018 Digests

Posted By Administration, Tuesday, October 16, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF PUBLISHED CENSURE
IN RE MICHAEL J. STUDTMANN
NO. 118,992 – OCTOBER 12, 2018

FACTS: A hearing panel determined that Studtmann violated Kansas Rules of Professional Conduct 1.2(c) (scope of representation), 1.5 (fees), 1.7(a) (conflict of interest), 1.8(f) (accepting compensation for representation of client from someone other than the client), and 1.16(d) (termination of representation). The complaint arose after Studtmann agreed to represent two individuals who were involved in a fatality automobile accident. Studtmann represented both clients without discussing with them the potential for a conflict of interest. Studtmann also spoke with his client's parents without obtaining her consent to release information to them. Both clients discharged Studtmann and obtained new counsel after a week of representation. Studtmann failed to promptly refund unearned fees to the client's parents.

HEARING PANEL: Based on the record and on stipulations made by the parties, the hearing panel determined that the fees charged by Studtmann during his time on this case were unreasonable. The panel also found numerous conflicts with Studtmann's joint representation and his dealings with his client's parents. The hearing panel believed that some of Studtmann's behavior was motivated by selfishness and it found that some of his answers at the hearing were misleading or deceptive. After noting several mitigating circumstances, the disciplinary administrator recommended discipline of a 90 day suspension. Studtmann made an initial request for probation before asking for an informal admonition. The hearing panel recommended discipline of published censure and also believed that Studtmann should be required to refund the entire retainer amount.

HELD: There were no exceptions to the hearing panel's final report. After noting that Studtmann had already refunded fees and agreed to an audit of his trust account, the disciplinary administrator recommended discipline of published censure. A majority of the court agreed. A minority of the court, troubled by the findings of Studtmann's dishonest testimony, would impose the 90-day suspension initially requested by the disciplinary administrator.

Kansas Court of Appeals

Criminal

EVIDENCE—SEARCH AND SEIZURE
STATE V. SALAZAR
MONTGOMERY DISTRICT COURT – REVERSED AND REMANDED
NO. 119,070 – OCTOBER 12, 2018 

FACTS: A motorcyclist was killed after he was hit by a van driven by Salazar. After the accident, Salazar was upset but gave law enforcement permission to get her driver's license out of her vehicle. While looking for the license, officers found Salazar's cell phone on the floor. An officer picked it up and looked at it; when asked by another officer, he said that he was just trying to determine if Salazar was texting at the time of the accident. During her later interrogation, Salazar gave officers permission to search her phone. That investigation showed that Salazar sent a text at the exact time of the accident. Officers eventually requested and received a search warrant for Salazar's phone. Salazar was charged with multiple counts, including one count of vehicular homicide. She filed a motion to suppress, claiming that the officer's initial search of her cell phone was illegal, tainting any further evidence recovered from the phone. The district court granted the motion, finding that officers conducted an invalid warrantless search of the phone. The State appealed.

ISSUES: (1) Plain view exception; (2) Attenuation doctrine; (3) Exclusionary rule

HELD: A warrant is generally required before the search of a cell phone. The officer's search of Salazar's phone was unreasonable unless an exception to the warrant requirement applies. The district court made no findings about whether the officer pressed a button on Salazar's phone in order to see the text messages, or whether they were immediately visible. But the district court's implicit finding that the officer did manipulate the phone into showing messages is supported by substantial competent evidence. Because the officer pressed a button in order to activate the phone, the plain view exception does not apply. The district court did not make the findings necessary to determine whether Salazar's consent to search her phone was voluntary and remote enough to allow for application of the attenuation doctrine. The attenuation doctrine can only apply if Salazar's consent was voluntary, and further findings of fact are required before that can be determined.

STATUTES: No statutes cited.

Tags:  Attorney Discipline  Montgomery District  search and seizure  Weekly10162018 

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October 3 and October 5, 2018 Digests

Posted By Administration, Tuesday, October 9, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF JEAN MARIE BOBRINK
NO. 14,366—OCTOBER 3, 2018

FACTS: Jean Marie Bobrink, an attorney licensed to practice law in Kansas, voluntarily surrendered her license. At the time of surrender, there were two disciplinary complaints pending and she was operating under an active diversion agreement. Ms. Bobrink was disbarred in Missouri in January 2018.

HELD: The Court accepted the surrender and Ms. Bobrink is disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF ROBERT E. ARNOLD, III
NO. 22,544—OCTOBER 3, 2018

FACTS: Robert E. Arnold voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was being investigated by the Disciplinary Administrator. The conduct which prompted the investigation in Kansas served as the basis for Mr. Arnold's disbarment in Missouri in June 2018.

HELD: The court accepted the surrender, and Mr. Arnold is disbarred.

Civil

ADOPTION
IN RE ADOPTION OF C.L.
WYANDOTTE DISTRICT COURT–REVERSED and REMANDED
COURT OF APPEALS—REVERSED
NO. 117,723—OCTOBER 5, 2018

FACTS: C.L. was born in September 2016. Mother was not aware that she was pregnant. She placed C.L. for adoption while still in the hospital, and he was placed with custodial parents who hoped to adopt him. A social worker contacted the man who mother believed was the biological father. He was told about the baby and was asked to relinquish his parental rights. Father instead obtained counsel and sought to establish paternity; genetic testing later confirmed that father is C.L.'s biological parent. The potential adoptive parents filed an adoption petition and asked the court to terminate father's rights. Father appeared in that action and opposed adoption. The district court terminated father's parental rights, finding that father abandoned C.L. after learning of his birth. The court of appeals affirmed that finding and father's petition for review was granted.

ISSUE: (1) Sufficiency of the evidence to show support of the child

HELD: The facts established in the district court show that father made adequate efforts to support and meet his child. The putative adoptive parents made untrue allegations in their adoption petition, and the adoption petition prevented father from making efforts to support his child. This case must be remanded so that C.L. can begin to be integrated in to father's home.

STATUTE: K.S.A. 2016 Supp. 59-2921(a), -2136(h)(1), -2136(h)(1)(A), -2136(h)(1)(C), -2136(h)(2)(A), -2136(h)(2)(B)

criminal

appeals—criminal procedure—jurisdiction—statutes
state v. weekes
saline district court—Case Remanded
court of appeals—reversed
No. 115,739—october 5, 2018

FACTS: Weekes was convicted of unlawful possession of hydrocodone and sentenced to 12 months’ probation with underlying 30-month prison term. State later filed motion to revoke probation. Weeks filed motion pursuant to State v. McGill, 271 Kan. 150 (2001), seeking a reduced underlying prison term or to be allowed to serve sentences concurrently. District court revoked probation, denied the motion to modify the sentence, and imposed the original underlying sentence. Weekes appealed. In an unpublished opinion, court of appeals dismissed the appeal for lack of jurisdiction, relying on State v. Everett, No. 111168, 2015 WL 4366445 (Kan.App.2015)(unpublished), rev. denied 305 Kan. 1254 (2016), and citing K.S.A. 2016 Supp. 2016 Supp. 21-6801(c)(1). Weekes’ petition for review granted.

ISSUE: Appellate jurisdiction

HELD: Review was limited to issue of appellate jurisdiction. Logical fallacies in Everett rationale are identified. Panel had jurisdiction to review whether the district court abused its discretion in denying Weekes’ motion for a post-probation-revocation sentence modification, pursuant to K.S.A. 2017 Supp. 22-3716(c)(1)(E), even if the denial results in the imposition of an original sentence that was a presumptive sentence for the crime of conviction. The panel’s dismissal for lack of jurisdiction is reversed. Appeal was reinstated and remanded to court of appeals for consideration on the merits.

STATUTES: K.S.A. 2017 Supp. 21-6803(q), 22-3716(c)(1)(E); K.S.A. 2016 Supp. 21-6820(c)(1)

appeals—constitutional law—criminal law—criminal procedure—evidence  fourth amendment—prosecutors
state v. lowery
shawnee district court—affirmed
No. 115,377—october 5, 2018

FACTS: Related to a shooting between two vehicles on victims’ wedding night, Lowery was convicted of charges including premeditated first-degree murder of Davenport-Ray, attempted premeditated first-degree murder of Ray, and unlawful discharge of a firearm at an occupied building. On appeal, Lowery claimed: (1) prosecutorial error during trial and in closing argument; (2) he was denied his right to be present when district court held hearing on Lowery’s motion in limine and compelled a State witness to testify pursuant to grant of immunity; (3) district court erred by instructing jury on law of aiding and abetting without modifying the standard instruction; (4) his post-arrest statements to law enforcement officers were involuntary and should have been suppressed; (5) the partially redacted video recording of his interview with law enforcement officers contained inadmissible evidence; (6) prosecutor’s questions to witness went beyond the scope of defense counsel’s direct examination and elicited hearsay testimony; (7) insufficient evidence supported his convictions; and (8) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error, (2) right to be present at every critical trial stage, (3) aiding and abetting instruction, (4) voluntariness of a defendant’s statements to law enforcement, (5) failure to redact evidence from defendant’s video-recorded statement, (6) hearsay evidence beyond the scope of direct examination, (7) sufficiency of the evidence, (8) cumulative error

HELD: Defendant cannot circumvent contemporaneous objection requirements of K.S.A. 60-404 by characterizing an appellate issue as prosecutorial error rather than evidentiary error. No review of evidentiary claims that were not preserved for appeal. No abuse of district court’s discretion in denying Lowery’s motion for a new trial based on prosecutor’s comments and gestures. No error in prosecutor’s use of puzzle and picture analogies in this case which is factually distinguished from State v. Crawford, 300 Kan. 740 (2014), and State v. Sherman, 305 Kan. 88 (2016). Lowery’s claim of prosecutorial error for violating trial court’s orders in limine is unavailing. While a close call, prosecutor did not comment on witness credibility. Prosecutor improperly used “golden rule” argument in closing argument, and egregiously misstated the DNA evidence and testimony of the DNA analyst, but on facts in this case these were not reversible errors.

Kansas Supreme Court has not addressed whether an immunity hearing is a critical stage of the proceedings at which the defendant must be present, but other courts have found the defendant has no such right. However, district court violated Lowery’s statutory rights by conducting a hearing on Lowery’s motion in limine without Lowery or defense counsel present. Under facts in this case, the error was harmless.

Lowery’s instructional error claim is not reviewed because Lowery invited the error.

There is no express requirement in Miranda that a defendant be informed of the right to stop answering questions at any time and terminate the interview. Instead, this is part of the totality of the circumstances to be reviewed in the voluntariness calculus. Here, Lowery’s statements to law enforcement were freely and voluntarily made. District court’s Jackson v. Denno ruling is affirmed.

New allegations of material that should have been redacted were not preserved for appellate review. On claims properly before the court, the jury should not have heard officer comments on the possible sentence imposed if Lowery were to be found guilty, officer explanations on the law of felony murder, or statements implying that Lowery had a criminal history. But it is presumed the jury followed the instruction to not consider the ultimate disposition in this case.

Prosecutor’s questions were not outside the scope of direct examination. Officer’s testimony did not constitute inadmissible hearsay evidence, and no reasonable probability that evidence from this testimony affected the outcome of trial.

Evidence viewed in light most favorable to the State was sufficient to support Lowery’s convictions.

The three prosecutorial errors found in this case were harmless beyond a reasonable doubt, and the fairness of Lowery’s trial was not impacted by his absence at the motion hearing. Evidence against Lowery was not overwhelming, but circumstantially strong enough that cumulative effect of the errors did not deprive Lowery a fair trial.

STATUTES: K.S.A. 2017 Supp. 21-5210(b), 22-3208(7), -3501, -3601(b)(3)-(4), 60-261, 455, -455(a), -460; K.S.A. 22-3403(3), 60-404, -421, -455, -446, -447

attorneys—criminal law—criminal procedure—ethics—evidence  judges—juries—
jury instructions—prosecutors—statutes—venue
state v. miller
douglas district court—affirmed
No. 114,373—october 5, 2018

FACTS: Miller was convicted of premeditated first-degree murder of his wife. State v. Miller, 284 Kan. 682 (2007)(Miller I). In 2012 unpublished opinion, court of appeals granted Miller post-conviction relief and ordered a new trial. Kansas Supreme Court affirmed that decision. Miller v. State, 298 Kan. 921 (2014)(Miller II). On retrial, Miller again convicted of premeditated first-degree murder. Miller appealed. As structured by the court, Miller claims trial court erred by: (1) denying motion for change of venue given extensive publicity surrounding first trial and corresponding pretrial publicity on retrial; (2) denying Miller’s for-cause challenges to 10 prospective jurors who knew of Miller’s prior conviction and/or had a preconceived opinion he was guilty; (3) denying Miller’s motion to first have jury determine if victim’s death was homicide, and then have same jury determine the degree of homicide; (4) denying portion of proposed instruction that limited jury’s consideration of dating site evidence as evidence of homicide; (5) denying motion to disqualify the district attorney’s (DA’s) office based on conflict of interest with witness and because office in possession of information from Miller’s first trial that was protected by attorney-client privilege; and (6) three times advancing an interpretation of the evidence that was not supported by the record. Miller also claimed (7) that medical evidence from State’s forensic pathologist was insufficient to establish the victim had been killed by another. Miller further claimed the trial court erred by: (8) denying motions for mistrial after prosecutor mentioned pornography in violation of in limine order, and after State’s rebuttal witness testified outside the scope of permissible rebuttal; (9) admitting evidence Miller sought to exclude through motion in limine of Miller’s extramarital affair, Miller accessing dating websites, Miller being the beneficiary of wife’s life insurance policy, and graphic photographs; and (10) granting State’s motion on first day of retrial to admit Miller’s testimony in Miller I without giving timely notice of intent to introduce this prior testimony. Finally, Miller claimed cumulative error denied him a fair trial.

ISSUES: (1) Change of venue, (2) trial court’s denial of for-cause juror challenges, (3) Denial of bifurcation request, (4) denial of complete requested limiting instruction, (5) disqualification of district attorney’s office, (6) judicial misconduct, (7) state’s failure to prove a homicide, (8) denial of mistrial motions, (9) motions in limine and admissibility of evidence, (10) admission of defendant’s prior trial testimony, (11) cumulative error

HELD: Millers’ constitutional challenge to venue fails Factors identified by United States and Kansas supreme courts are reviewed and applied, finding no presumed or actual prejudice from pretrial publicity in this case. Circumstances in State v. Carr, 300 Kan. 1 (2007), are compared.

Defense arguments regarding use of peremptory challenges, and trial court’s refusal to grant for-cause challenges, are examined. Even if district court erred in refusing to strike one prospective juror (A.S.) for cause, under facts in this case there was no showing of prejudice, and no violation of Miller’s constitutional or statutory rights.

Miller’s bifurcation claim is evidentiary rather than constitutional. District court did not err in refusing to bifurcate trial by separate elements.

No showing of error in district court’s modification of the proposed limiting instruction.

Under facts in this case, which included defendant’s son living rent free with an Assistant District Attorney (ADA), and DA’s office acquiring but not disclosing possession of a day planner of Miller’s attorney in first trial, district court did not abuse its discretion in refusing to disqualify the DA’s office based on conflict of interest or DA’s unprofessional handling of the planner. Kansas Rules of Professional Conduct discussed.

Judicial misconduct claim fails. Taken in context, trial judge’s response was not erroneous, much less misconduct.

Miller did not object to State forensic pathologist’s cause-of-death opinion until basis for that opinion had been thoroughly parsed and interminably repeated through multiple examinations by both parties. Failure to make timely contemporaneous objection defeats review of the merits of this evidentiary claim.

Prosecutor’s mention of pornography was error, but error was harmless in this case. Likewise, if any error in rebuttal witness testimony, the error was harmless.

In following precedent set in Miller I, district court did not err by admitting evidence of extramarital affair for purpose of motive. Under facts in this case, probative value of detective’s testimony about Miller accessing dating websites is tenuous but any error was harmless, and no error in admitting evidence of life insurance. District court’s admission of graphic photographs is affirmed based on law of the case established in Miller I.

Trial court’s decision to allow Miller’s retrial counsel to inspect Miller I testimony and respond with arguments was a reasonable remedy of the discovery violation. Under circumstances in this case, district court did not abuse its discretion in refusing to continue or suspend the retrial for a separate hearing on State’s motion to admit the Miller I testimony.

Viewed in context of the entire record, Miller was not so prejudiced by cumulative effect of errors declared in this case as to deny him a fair trial.

DISSENT (Johnson, J.): Notwithstanding practical and emotional costs of yet another retrial that likely again would result in a conviction, Constitutions require that result to maintain integrity of our criminal justice system. Cannot condone the conviction in this case because the retrial was fundamentally unfair. Unfairness starts with retrial’s venue, citing his dissent in Carr. Allowing juror A.S. to sit on retrial jury was fundamental error. Testimony about Miller accessing dating websites had no logical connection to a relevant fact that would make it more likely that Miller killed his wife. Imprudent to apply law of the case doctrine to uphold admission of graphic photographs. And testimony of State’s forensic pathologist should have been considered in assessing impact of cumulative error.

DISSENT (Wurtz, J., appointed to hear case vice Justice Stegall): Agrees that if an erroneous expert opinion on cause of death is added to the cumulative error analysis in this case, prejudice caused by cumulative effect of all errors denied Miller a fair trial. Also agrees that expert opinion on the cause of death was not based on medical evidence but rather on the doctor’s factual determination that Miller had lied about being in the room when his wife died. Would find Miller’s objection to expert opinion on the cause of death was sufficient to preserve the question for appellate review on the merits.

STATUTES: K.S.A. 2017 Supp. 22-3212(a)(1), -3212(i), -3601(b)(3), 60-242(b), -426, -426(b); K.S.A. 2014 Supp. 60-226(b)(6)(C), -226(b)(6)(C)(ii); K.S.A. 22-2101 et seq., -2616(1), -3423(1)(c), 60-101 et seq., -404, -407(f), -445, -456, -1507

criminal law—criminal procedure—evidence—jury instructions—prosecutors
state v. anderson
bourbon district court—affirmed
No. 116,710—october 5, 2018

FACTS: Anderson was convicted of child abuse and felony murder in shaken-baby case. On appeal he claimed: (1) district court failed to give multiple acts instruction to ensure jury unanimity as to whether Anderson injured victim by throwing down on the couch or by shaking; (2) district court erroneously admitted testimony under K.S.A. 60-455 of Bodinea person who had previously lived with Anderson and wifeabout Anderson’s prior aggressive behavior toward the child victim; and (3) during closing argument the prosecutor engaged in speculation not fairly based on the evidence by suggesting Anderson believed the State’s doctors were out to get him for the fun of it, by saying Anderson was trying to manipulate jury by calling the victim his son, and by saying Anderson lost his temper which resulted in a child with massive brain injury. Anderson also claimed cumulative error denied him a fair trial.

ISSUES: (1) Refusal to give a requested unanimity instruction, (2) admission of K.S.A. 60-455 evidence, (3) prosecutorial error in closing argument, (4) cumulative error

HELD: Court reviews distinction between multiple acts and alternative means. Here, jury did not have to choose between multiple acts. District court did not err in declining to give jury a unanimity instruction.

Under facts in this case, any error district court may have made in allowing K.S.A. 60-455 testimony of Bodine about Anderson’s prior treatment of the child victim was harmless.

Prosecutor’s comments about doctors’ motives constitute error. Prosecutor arguing that jury should attribute a bad motive to Anderson referencing the victim as his son was error. And prosecutor’s remarks about Anderson losing his temper were not supported by the record, and argued facts that were contrary to the evidence. Nonetheless, under facts in this case, no reasonable possibility that the absence of prosecutor’s erroneous comments would have changed outcome of the credibility and expert battles that Anderson lost.

Cumulative error claim fails.

STATUTE: K.S.A. 2017 Supp. 22-3601(b)(3), 60-261, -455, -455(b)

Tags:  Attorney Discipline  Bourbon District  disbarment  Douglas District  Saline District  Shawnee District  Wyandotte District 

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September 28, 2018 Digests

Posted By Administration, Monday, October 1, 2018

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF JEFFERY A. MASON
NO. 119,012—SEPTEMBER 28, 2018

FACTS: Mason's license to practice law in Kansas was suspended for six months in December 2016 for violating multiple Kansas Rules of Professional Conduct. In December 2017, the Disciplinary Administrator's office filed a new complaint and a hearing panel determined that Mason violated KRPC 1.3 (diligence), 1.4(a) (client communication), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The misconduct arose after Mason failed to filed essential tax forms for an organization, which resulted in the revocation of its 501(c)(3) status.

HEARING PANEL: The hearing panel found that Mason failed to act with reasonable diligence when representing his client. There were several aggravating factors, and the panel also found mitigators including mental health issues and his willingness to cooperate with the disciplinary process. The disciplinary administrator recommended discipline of indefinite suspension, retroactive to the December 2016 date of Mason's initial, six-month suspension. Mason suggested discipline of censure and that he be placed on probation. The hearing panel determined that probation was not appropriate in this case and recommended discipline of indefinite suspension.

HELD: Mason filed no exceptions to the hearing panel report. The court adopted the hearing panel's findings and conclusions and concluded that indefinite suspension was the appropriate discipline. Before Mason can be reinstated, Mason must provide a written report from a licensed mental health provider and a plan for future practice. The indefinite suspension runs from the date of this order, a decision that was prompted by the serious nature of the violations and the misleading nature of Mason's comments at the prior disciplinary proceeding.

 

criminal 

constitutional law—criminal procedure—motions—sentences—statutes
state v. Lehman
sedgwick district court—reversed, modified sentence vacated, and remanded
court of appeals—reversed
no. 112,500—september 28, 2018

FACTS: Lehman was convicted in 2009 of sexual battery, and sentenced to 31 months in prison with 24 months post-release supervision. State filed 2013 motion to correct an illegal sentence, claiming K.S.A. 22-3717(d)(1)(G) required mandatory lifetime of post-release supervision. Motion was ultimately heard in June 2014, after KDOC had discharged Lehman from post-release supervision. District court ordered lifetime post-release supervision, finding Lehman’s discharge did not deprive the court of jurisdiction to correct an illegal sentence. Lehman appealed. Court of appeals affirmed in unpublished opinion. Lehman’s petition for review granted.  

ISSUE: District court’s authority to modify a complete sentence

HELD: Invited error doctrine does not preclude State’s motion to correct an illegal sentence. Nor do contract principles prevent State from challenging the legality of a sentence it agreed to recommend in a plea agreement. Cases from other state and federal courts are reviewed. When Lehman completed his original sentence—even if illegal—without a court order that superseded the judgment of the sentencing judge, he was no longer subject to the jurisdiction of the criminal justice system. Any additional sentence imposed for the same offense after completing the original sentence constitutes a multiple punishment proscribed the double jeopardy provision of federal and Kansas constitutions. Argument that State’s notice of filing the motion to correct an illegal sentence negated any expectation of finality Lehman may have had upon completing his original sentence is unavailing.

CONCURRENCE (Rosen, J.): Agrees that under facts of this case, Lehman had a legitimate expectation in the finality of his sentence. Writes separately to emphasize the special circumstances of this case. If State had filed motion to correct and had obtained a judicial stay of finality before Lehman’s sentence had expired, that would have preserved the sentencing court’s jurisdiction. Instead, State did not obtain service on Lehman until after his sentence had expired.

CONCURRENCE (Stegall, J.): Concurs in the result but would not reach the double jeopardy question because precedent established in State v. Montgomery, 295 Kan. 837 (2012), would apply to foreclose the State’s claim.  

STATUTE: K.S.A. 21-4704(e)(2), 22-3504, -3504(1)-(2), -3717(d)(1)(G)

 

criminal law—criminal procedure—sentences—statutes
state v. lamone
sedgwick district court—judgment vacated and case remanded
court of appeals - affirmed
no. 115,451—september 28, 2018

FACTS:  Lamone was convicted of driving under the influence (DUI). District court enhanced the sentence based on Lamone’s two prior Wichita Municipal Court convictions. Lamone appealed, arguing the Wichita ordinance prohibits a broader range of conduct than the Kansas statute. Court of appeals vacated the sentence and remanded case to district court for resentencing. 54 Kan. App. 2d 180 (2017). State’s petition for review granted.

ISSUE: Prior convictions used to enhance sentence

HELD: This issue was addressed and resolved in State v. Gensler, 308 Kan. 674 (2018). A prior municipal court conviction for DUI under a Wichita ordinance prohibiting operation of a vehicle under certain circumstances, when the element of “vehicle” is defined more broadly that the “vehicle” element in the state DUI statute, cannot be used to elevate a later violation of the state statute to a felony. Lamone’s sentence is vacated and case is remanded to district court for resentencing.

DISSENT (Stegall, J.): Dissents from the result and rationale in this case for same reasons stated in his dissent in Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A. 2016 Supp. 8-1567

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