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October 16, 2020 Digests

Posted By Administration, Monday, October 19, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE MARK D. MURPHY
NO. 122,036—OCTOBER 16, 2020

FACTS: A hearing panel determined that Murphy violated KRPC 1.1 (competence); 1.2(c) (scope of representation); 1.7 (conflict of interest); 2.1 (independent judgment); and 8.4(d) (conduct prejudicial to the administration of justice). The issues arose after Murphy represented both sides in a business transaction without informing his clients of the potential conflicts of interest and without learning that one party to the transaction had already filed for bankruptcy.

HEARING PANEL: The disciplinary administrator asked that Murphy be disbarred. This incident was part of a pattern of misconduct which resulted in minor discipline. Murphy was dishonest about his role in the proceedings and did so in an attempt to minimize his culpability. Based on the balance of the aggravating and mitigating circumstances, the hearing panel recommended that Murphy's license be suspended for one year.

HELD: Murphy filed several exceptions to the hearing panel report. But the evidence presented supports the hearing panel's findings by clear and convincing evidence, and some of Murphy's arguments mischaracterized the evidence. Murphy argued that the recommended discipline was excessive and that reprimand would be the appropriate discipline or, in the alternative, that he be allowed to serve a term of probation. Both the Disicplinary Administrator and the court found that Murphy failed to comply with the rules regarding probation and denied his request. After considering the evidence, the court concluded that a two-year suspension was the appropriate discipline. The second year of the suspension may be stayed if Murphy follows a probation plan which is approved by the Disciplinary Administrator's office.

criminal

appeals—constitutional law—criminal law—statutes
state v. dale
johnson district court—affirmed in part, reversed in part
court of appeals—affirmed
no. 117,162—october 16, 2020

FACTS: Jury convicted Dale of two counts of aggravated robbery and one count of theft. Dale appealed. Rejecting all grounds but for a jury instruction claim on aggravated robbery, Court of Appeals in unpublished opinion reversed the aggravated robbery conviction and remanded for a new trial on those two counts. On remand, Dale argued his conviction on lesser included crime of theft barred retrial on aggravated robbery counts. Alternatively on issue not raised in his appeal he argued the aggravated robbery counts were multiplicitous. District court convicted Dale on both aggravated robbery counts. Dale appealed. In unpublished opinion, Court of Appeals held Dale’s two aggravated robbery convictions were not multiplicitous, but reversed the theft conviction as multiplicitous with the aggravated robbery convictions. Dale’s petition for review granted. State did not cross-petition for review of panel’s determination that theft was a lesser included offense of aggravated robbery.

ISSUES: (1) Double jeopardy; (2) multiplicity

HELD: Neither the Double Jeopardy Clause nor K.S.A. 21-3107(2)(a) absolutely prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts. If the continued prosecution follows a defendant’s post-conviction appeal that sought a new trial and, on remand, a defendant is found guilty of a greater offense after a lesser included offense has been affirmed, a court may, absent application of one of a limited number of exceptions, vacate the sentence for the lesser included offense and impose a sentence for the greater offense. Here, Court of Appeals did not err in holding that Dale’s convictions for aggravated robbery would not result in a subsequent prosecution in violation of either a constitutional or statutory right to be free from double jeopardy.

            Under facts of case, Dale’s convictions for two counts of aggravated robbery were not multiplicitous even though they arose from one transaction that constituted unitary conduct because robbers, while armed with BB gun, took property in the possession or control of two individuals by force directed at both.

STATUTES: K.S.A. 2019 Supp. 21-5109; K.S.A. 21-3107, -3107(2), -3107(2)(a), -3108(4)(c), -3426,  -3427

appeals—attorney-client—criminal law—criminal procedure—motions
state v. herring
sedgwick district court—reversed; court of appeals—reversed
No. 118,648—october 16, 2020

FACTS: Herring pleaded no contest to robbery and aggravated assault. Prior to sentencing he filed motion to withdraw his plea, asserting claims of ineffective assistance of counsel. District court denied the motion applying the Strickland test to find Herring failed to satisfy the first factor in State v. Edgar, 281 Kan. 30 (2006). Herring appealed. In unpublished opinion, Court of Appeals found district court erred by using the Strickland test instead of the “lackluster advocacy” standard specified under State v. Aguilar, 290 Kan. 506 (2010), but affirmed the district court’s ruling because the error was harmless. Herring petitioned for review of panel’s application of harmless error.

ISSUE: Motion to withdraw plea—Ineffective assistance of counsel

HELD: District court’s improper use of the more stringent, constitutional Strickland standard when considering the first Edgar  factor is not amenable to harmless error analysis. Panel’s decision is reversed and case is remanded to district court with directions to reassess the first Edgar factor under the lackluster advocacy standard and then exercise its statutory discretion under K.S.A. 2019 Supp. 22-3210(d)(1).  

STATUTE: K.S.A. 2019 Supp. 22-3210(a), -3210(d), -3210(d)(1), -3210(d)(2)

 

Kansas Court of Appeals  

CIVIL

INSURANCE—REAL ESTATE
KRAUSE V. KERNS
JOHNSON DISTRICT COURT— AFFIRMED
NO. 121,842—OCTOBER 16, 2020

FACTS: The Kernses contracted to sell their house to Krause. The purchase contract contained several disclosures but did not mention any issues with water intrusion or the fireplace. After closing on the property, Krause discovered many issues with the property that were not included in the disclosure. Krause sued the Kernses for the misrepresentations or omissions included in the disclosure. The parties ended up settling; the Kernses stipulated to a final judgment of $79,482 in favor of Krause. As part of the agreement the Kernses agreed to assign their rights under their insurance policy to Krause. In return, Krause promised to only pursue collection of the judgment with the insurance company, not with the Kernses personally. Krause filed a garnishment action against the insurance company to recover the judgment amount. The insurance company filed a motion for summary judgment, arguing that the Kernses' insurance policy did not cover misrepresentation and so the company was not liable. The district court granted that motion, finding that policy coverage was triggered by an "occurrence" and that the failure to disclose was not an occurrence. Krause appeals.

ISSUES: (1) Whether coverage exists under the insurance policy

HELD: A threshold requirement of coverage under the insurance policy is the existence of an occurrence. The insurance policy clearly defines "occurrence" as an accident which results in bodily injury or property damage. The facts of this case do not show an occurrence. And even if Krause could prove an occurrence, the policy language which excludes coverage for a claim arising out of any written or oral statement clearly bars Krause's claim.

STATUTES: none

Tags:  Appeals  Attorney Discipline  Attorney-Client  Constitutional Law  Criminal Law  Criminal Procedure  Insurance  Johnson District Court  Motions  Real Estate  Sedgwick District Court  Statutes 

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October 9, 2020 Digests

Posted By Administration, Tuesday, October 13, 2020

Kansas Supreme Court 

CIVIL

CONSTITUTIONAL ISSUES—DUI
JARVIS V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 119,116—OCTOBER 9, 2020

FACTS: A law enforcement officer initiated a traffic stop after watching Jarvis drive. The officer noticed that Jarvis smelled of alcohol and had bloodshot eyes. After he performed poorly on field sobriety tests, Jarvis was arrested for driving under the influence. After receiving the DC-70 advisory, Jarvis refused to supply a blood or breath sample and his driver's license was suspended. Jarvis appealed and a hearing officer affirmed the suspension, so Jarvis petitioned for judicial review. The district court conducted an evidentiary hearing and relied on K.S.A. 2019 Supp. 8-1020(p) when concluding that the officer's testimony was not credible and that the officer lacked reasonable suspicion to justify the traffic stop. KDR appealed, and the Court of Appeals affirmed the district court. KDR's petition for review was granted.

ISSUES: (1) Application of K.S.A. 2019 Supp. 8-1020 to administrative suspension; (2) existence of reasonable suspicion

HELD: The 2016 amendments to K.S.A. 8-1020(p) allow a court to consider and determine constitutional issues, including the lawfulness of a law enforcement encounter. This is not just advisory language meant to guide law enforcement officers; the Kanas Judicial Review Act does not allow courts to issue advisory opinions. Instead, K.S.A. 2019 Supp. 8-1020(p) directs courts to consider and determine any constitutional issues. And setting aside the license suspension order is an appropriate remedy if the court determines that the law enforcement encounter was unlawful. A review of the record on appeal shows the district court correctly determined that law enforcement's stop of Jarvis lacked reasonable suspicion.

STATUTES: K.S.A. 2019 Supp. 8-259, -1020, -1020(h), -1020(o), -1020(p), -1020(q); K.S.A. 8-259, 77-617, -621, -622, -622(b)

DUI—INFORMED CONSENT
WHIGHAM V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART—
DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED
NO. 117,043—OCTOBER 9, 2020

FACTS: After receiving a tip, law enforcement found Whigham in his open garage, hunched over the steering wheel of his vehicle and smelling of alcohol. After he performed poorly on field sobriety tests, Whigham was arrested for driving under the influence. Officers gave the DC-70 implied consent form and Whigham refused to provide a breath sample. Whigham's driver's license was suspended and he petitioned for judicial review, challenging both the sufficiency of the implied consent advisory and the constitutionality of his encounter with law enforcement. Whigham did not believe officers had reasonable suspicion to believe that he operated a vehicle while under the influence, and he questioned whether officers could enter his garage without a warrant. The district court refused to consider the constitutional issues and found that officers had reasonable grounds to believe that Whigham operated a vehicle while under the influence. The Court of Appeals affirmed the district court, holding that the 2016 amendments to K.S.A. 8-1020(p) did not overrule the holding in Martin that the exclusionary rule cannot be used in driver's license suspension proceedings. Whigham's petition for review was granted.

ISSUES: (1) Effect of 2016 amendments on use of exclusionary rule; (2) sufficiency of implied consent advisory

HELD: On judicial review, K.S.A. 2019 Supp. 8-1020(p) allows a court to consider any constitutional issue, including the lawfulness of a law enforcement encounter. A court may set aside a driver's license suspension if a driver meets the burden of showing that the encounter was unlawful. The district court erred by not considering Whigham's constitutional arguments, and the case must be remanded for further proceedings. The implied consent advisory given to Whigham was sufficient.

STATUTES: K.S.A. 2019 Supp. 8-1020, -1020(p); K.S.A. 2015 Supp. 8-1001(k)

 

Kansas Court of Appeals

Civil

EIGHTH AMENDMENT—HABEAS CORPUS
WILLIAMS V. STATE
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 121,815—OCTOBER 9, 2020

FACTS: When he was 14-years old, Ronnell Williams was convicted of two counts of premeditated first-degree murder. The district court imposed two hard-50 sentences, to be served concurrently. His conviction and sentence were affirmed on direct appeal. In 2005, Williams' first K.S.A. 60-1507 motion, which raised claims of ineffective assistance of counsel, was denied. In 2012, the United States Supreme Court concluded that the Eighth Amendment precludes a life sentence for a juvenile offender if the sentencing court does not have discretion to consider the offender's youth and personal characteristics. It was later clarified that this holding is retroactive. Williams filed a second K.S.A. 60-1507 motion arguing that the structure under which he was sentenced violated the Eighth Amendment, rendering his sentence unconstitutional. The district court rejected Williams' motion as untimely and successive and he appealed.

ISSUES: (1) Summary dismissal; (2) constitutionality of hard 50 sentence; (3) remedy; (4) lifetime post-release

HELD: The United States Supreme Court decisions in Miller and Montgomery are intervening changes in the law which constitute exceptional circumstances and justify a second 60-1507 motion. These decisions create the rare case of manifest injustice which justifies a second motion. Miller applies whether a sentence is mandatory or discretionary, so it makes no difference whether the district court used discretion when determining that the hard 50 sentence was justified by the aggravating circumstances present. Although Williams is not technically serving a life sentence, the hard-50 is a functional equivalent; in both cases, Williams lacks the possibility for release at a meaningful point in his life. Williams was denied the Eighth Amendment's protections when the district court failed to consider his youth, diminished culpability, and heightened capacity for change before imposing the hard-50 sentence. A sentencing court may impose a life sentence or a hard-50 sentence on a juvenile, but only after making individualized considerations about the offender. The remedy here is to remand the case to the district court to allow for a hearing on whether a hard-50 sentence is a constitutionally disproportionate punishment for Williams. The district court lacked authority to impose lifetime post-release and that portion of Williams' sentence must be vacated.

STATUTES: K.S.A. 2019 Supp. 21-6620; 22-3504(a), 60-1507, -1507(a), -1507(b), -1507(c), -1507(f); K.S.A. 1999 Supp. 21-4635(b), -4635(c), -4636; K.S.A. 60-1507

Tags:  constitutional issues  DUI  Eighth Amendment  habeas corpus  informed consent  Johnson District Court  Wyandotte District Court 

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October 2, 2020 Digests

Posted By Administration, Tuesday, October 6, 2020

Court of Appeals

Civil

CONTRACTS—MUNICIPALITIES—TORTS
FARMERS BANK & TRUST V. HOMESTEAD COMMUNITY DEVELOPMENT
GEARY DISTRICT COURT—AFFIRMED
NO. 120,671—OCTOBER 2, 2020

FACTS: In 2007, Farmers lent money to Homestead Community Development to remodel a property in Junction City. The mayor of Junction City signed a letter of guaranty to Farmers, backed by a letter from the city attorney stating that the City had the authority to make the guaranty and that the mayor's signature was a binding legal obligation. Homestead failed to pay the loan and Farmers sued Homestead on its note and foreclosed its mortgage. Farmers then sought to enforce the City's guaranty. The City responded that the guaranty was void and unenforceable, in part because Farmers never filed the notice required by K.S.A. 12-105b(d) prior to filing suit. Farmers sued the City, among others, for breach of the guaranty. It lost when the district court granted summary judgment to all defendants. Farmers appealed.

ISSUES: (1) Application of the cash-basis law and budget Law; (2) grant of summary judgment; (3) compliance with statutory notice provisions

HELD: The purpose of the Cash-Basis and Budget Laws is to prevent a budgetary deficit for a municipality at the end of a fiscal year. The Cash-Basis Law bars cities from creating debt in excess of the amount of money on hand for that purpose. To comply with the Cash-Basis Law, the City would have had to possess enough money in the treasury for the purpose of paying its guaranty. And the Budget Law requires expenditures to be itemized and classified in advance. Transactions in violation of these laws are void, and because the guaranty agreement complied with neither law it must necessarily be void. It is irrelevant that the City had enough money in reserve to pay the guaranty because the funds were not designated for this purpose, and it is irrelevant that the debt was only contingent on Homestead failing to pay. And the fact that the City voluntarily made some payments under the guaranty does not require payment of the entire amount due. K.S.A. 12-105b(d) requires notice to a municipality prior to filing suit. Farmers' actions did not constitute substantial compliance and notice was legally required before any suit could be filed.

STATUTES: K.S.A. 2019 Supp. 12-105b(d); K.S.A. 10-1112, -1117, -1119, 79-2934, -2935

FIDUCIARY DUTY—TRUSTS
ROENNE V. MILLER
ROOKS DISTRICT COURT—REVERSED AND REMANDED WITH DIRECTION
NO. 120,054—OCTOBER 2, 2020

FACTS: Sonya Miller died in 1995, survived by five children. At the time of her death, Sonya owned royalty interests in oil leases as well as real estate and farm implements. In her will, Sonya left her farm property and real estate to her sons Brad and Mark, with specific directions that none of the other children were to own her farm property. The remainder of the estate, which consisted solely of oil lease royalties, was placed in trust to be managed by Brad as trustee for the benefit of all of Sonya's children, with any remainder interest to be split equally among Sonya's grandchildren. The terms of Sonya's testamentary trust gave Brad "uncontrolled" discretion over the trust while also stating that he was "only" to act in a fiduciary capacity. Over the years, the record shows that Brad used trust property to enrich himself and his wife with no thought of the other beneficiaries. Brad testified that he needed the trust property to pay down debt on the farmland, which he wanted to keep intact according to his mother's wishes. By 2014, Brad transferred all trust property into his own name, emptying the trust of assets. The other beneficiaries sued Brad in 2015 for breach of fiduciary duty. The district court ruled in Brad's favor, finding that the trust language which gave the trustee absolute discretion allowed him to use the principal however he wished. The beneficiaries appealed.

ISSUES: (1) Nature of the trust; (2) limits on discretionary action; (3) remedies; (4) failure to make an annual accounting

HELD: Sonya's trust is clearly a discretionary trust, which means that a court may intervene only in cases of an abuse of discretion by the trustee or if a trustee acts in bad faith. But there are principles which apply to all trusts, including the fiduciary duties of loyalty, impartiality and prudence. The terms of a trust cannot supersede a trustee's statutory duty to act in good faith and administer the trust for the beneficiaries' benefit. Brad's decision to take all the trust property for himself violated his duties of loyalty and impartiality. Brad's actions stripped the trust and erased any benefit to the other beneficiaries. The district court erred by concluding that the other beneficiaries were not entitled to relief. But because the district court did not consider any remedy for the beneficiaries this case must be remanded for further proceedings. Brad had a fiduciary duty to provide an annual accounting of trust activity to the other beneficiaries, but there is no evidence that any beneficiary ever requested an accounting.

STATUTES: K.S.A. 2019 Supp. 58a-802, -802(a), -813(a), -813(b); K.S.A. 58-24a01, 58a-105, -803, -804, -814

DIVORCE—PRENUPTIAL AGREEMENTS
IN RE MARRIAGE OF NELSON
MARION DISTRICT COURT—REVERSED AND REMANDED
NO. 122,190—OCTOBER 2, 2020

FACTS: Terry and Sherry Nelson married in 2001. Prior to the wedding, they created a prenuptial agreement explaining how certain property and responsibilities would be divided in the event of a divorce. Property was categorized as marital, separate or jointly titled and was divided according to ownership. During the marriage, Terry sold some of his solely owned real estate and purchased land which included the 160 acres where the Nelsons lived during their marriage. All this land was jointly owned and titled accordingly. Sherry filed for divorce in 2017. The process of separating the couple's real property was difficult, as Terry argued that all the jointly titled property at issue should be considered his sole property because it was purchased with the proceeds of the sale of his solely owned land. After an evidentiary hearing, the district court ruled that the prenuptial agreement was ambiguous as to how the property should be categorized. The district court considered Terry's intentions when purchasing the land and concluded that Terry never intended to place the property in joint tenancy with Sherry and that it should have been titled as solely owned. The district court found that the 160 acres at issue were solely owned by Terry, and Sherry appealed.

ISSUES: (1) Whether prenuptial agreement is ambiguous; (2) use of parol evidence; (3) request for attorney fees

HELD: The district court must focus on what the parties intended for the prenuptial agreement to encompass. The agreement never anticipated that each spouse's separate property would always remain separate property. Under the agreement, Terry could use proceeds from his separately owned property to purchase jointly titled property. And the agreement clearly required jointly titled property to be divided in the event of divorce. The district court erred by finding that the property at issue should all be given to Terry. Oral testimony cannot be used to vary the terms of a written instrument. Terry never claimed that the joint deeds were fraudulent or the result of a mutual mistake. The district court erred by considering extrinsic evidence of Terry's intent and knowledge about the real property at issue. The property at issue must be evenly divided by the district court on remand. The plain language of the prenuptial agreement barred any claim for attorney fees, so the district court properly denied Sherry's request for such fees.

STATUTE: K.S.A. 2019 Supp. 23-2404(a)(3), -2405, -2715

ESTOPPEL—MANDATE RULE—OIL AND GAS
FAWCETT TRUST V. OIL PRODUCERS, INC. OF KANSAS
SEWARD DISTRICT COURT—AFFIRMED AND CROSS-APPEAL DENIED
NO. 120,611—OCTOBER 2, 2020

FACTS: This class action proceeding seeks underpaid gas royalties from the Oil Producers, Inc. of Kansas (OPIK). This on-going case involves the price difference between the cost of gas as it enters the interstate market versus the price of gas at the wellhead. In a prior appeal, the Kansas Supreme Court held that gas production was merchantable once the operator puts the gas into a condition acceptable to the purchaser in a good-faith transaction. The meant that OPIK was not liable for all the postproduction, post-sale expenses incurred in getting the gas marketable. The Court did hold that OPIK wrongly deducted conservation fees from royalties paid to the class. The case was remanded to district court. Once back in district court, the class tried to amend its claim. The district court denied the motion, claiming it had no discretion to consider the motion under the Supreme Court's mandate. The district court also ruled that OPIK could not assert a statute of limitations defense on the conservation fee issue. Both parties appealed.

ISSUES: (1) Application of the mandate rule; (2) failure to award prejudgment interest; (3) barring a statute of limitations claim through equitable estoppel

HELD: The mandate rule must bind a lower court on remand to avoid endless litigation. When an appellate court decides an issue, the district court is foreclosed from reconsidering the issue. The Kansas Supreme Court clearly rejected the class' claim about when OPIK was required to pay royalties. The argument the class is attempting to make now is barred by the mandate, and the district court correctly refused to allow the class to amend its claim. The district court applied the correct prejudgment interest statute and correctly ruled that OPIK did not owe the class prejudgment interest. The district court also correctly ruled that equitable estoppel barred OPIK's statute of limitations defense on the conservation fee issue.

STATUTE: K.S.A. 16-201, 55-1614(b), -1614(h), -1615

 

criminal 

criminal procedure—motions—sentencing—statutes
state v. adams
wyandotte district court—affirmed
no. 122,255—october 2, 2020

FACTS: Adams convicted of attempted second-degree murder. Conviction and sentence affirmed 2013 on direct appeal. Adams filed pro se motions in 2014 and 2019 to correct an illegal sentence, arguing district court improperly classified Adams’ 1988 Missouri robbery conviction as a person offense. District court summarily denied the motions finding State v. Murdock, 299 Kan. 312 (2014)(Murdock I) was inapplicable when Adams’ sentence was pronounced and sentence was legal when imposed based on existing law. Adams appealed, arguing he was entitled to benefit of Murdock I change in law because State v. Williams, 291 Kan. 554 (2010), was decided while Adams’ direct appeal was pending and Murdock I was premised on Williams.

ISSUE: Motion to correct illegal sentence—classification of out-of-state conviction

HELD: District court is affirmed. Adams committed the crime of conviction in October 2008 and was sentenced in 2010.   Based on controlling law in effect at the time, State v. Vandervort, 276 Kan. 164 (2003), overruled in part by State v. Dickey, 301 Kan. 1018, (2015), Adams’ Missouri robbery conviction was scoreable as a person offense based on 2008 codification of Kansas robbery statute. Murdock I was a change in the law occurring after Adams’ sentence was imposed, but Adams not entitled to benefit of that change because it was decided after conclusion of Adams’ direct appeal. Adams’ sentence was lawfully imposed under Vandervort and how Kansas appellate courts applied Williams would not have established Adams’ sentence was illegal at that time.

STATUTES: K.S.A. 2019 Supp. 21-6801 et seq., 22-3504, -3504(c), -3504(c)(1), -3504(c)(2), -3504(d); K.S.A. 2018 Supp. 22-3504; K.S.A. 21-3426, -4710,-4711, -4711(e), -6810, -6811, 22-3504, -3504(c)(2), -3504(d)

appeals—appellate jurisdiction—constitutional law—sentencing—statutes
state v. myers
johnson district court—affirmed
no. 122,046—october 2, 2020

FACTS: Myers charged with felony DUI, third offense. Myers pled not guilty and filed motion to strike her two prior Missouri DWI convictions, arguing the Missouri DWI statute failed the comparability analysis in K.S.A. 2019 Supp. 8-1567(i)(3) and (j). District court granted the motion relying on identical-to-or-narrower rule in State v. Wetrich, 307 Kan. 552 (2018), and categorical approach in State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), but did not dismiss the felony DUI charge. State filed interlocutory appeal under K.S.A. 2019 Supp. 22-3603, K.S.A. 2019 Supp. 22-3602, and K.S.A. 2019 Supp. 21-6820.

ISSUES: (1) Appellate jurisdiction; (2) sentencing—classification of out-of-state convictions

HELD: Jurisdiction for State’s appeal exists under K.S.A. 2019 Supp. 22-3603 which is intended to permit appellate review of trial court rulings on pretrial motions which may be determinative of the case. Appellate decisions interpreting ”suppression evidence” under K.S.A. 2019 Supp. 22-3603 are reviewed. Here, district court’s order substantially impaired State’s ability to prosecute the DUI as a felony charge. State should have asked district court to clarify its ruling and dismiss the felony DUI charge, which would have enabled State to invoke its right to appeal from order dismissing a complaint under K.S.A. 2019 Supp. 22-3602(b)(1).

            District court’s ruling is affirmed. Myers’ Missouri DWI convictions are not comparable to DUI under K.S.A. 2019 Supp. 8-1567(j)(2)-(3), and cannot be used to elevate her current Kansas DUI charge to a felony. K.S.A. 2019 Supp. 8-1567(j)(3) invites impermissible judicial fact-finding in violation of Apprendi by giving courts broad discretion to determine whether a defendant committed the out-of-jurisdiction offense in a manner similar enough to K.S.A. 2019 Supp. 8-1567. Apprendi, relevant even though Myers has not yet been sentenced, requires application of criteria in K.S.A. 2019 Supp. 8-1567(j) using Wetrich’s identical-to-or-narrower-than rule. Different conclusion on the same legal question reached in State v. Mejia, 58 Kan. App. 2d 229 (2020), [and in State v. Patton, 58 Kan. App. 2d __ (September 11, 2020)] relying on State v. Reese, 300 Kan. 650 (2014), is not followed. Instead, State v. Gensler, 308 Kan. 674 (2018), better reflects Kansas Supreme Court’s intent to apply identical-to-or-narrower-than rule in the DUI context to avoid impermissible judicial factfinding.        

CONCURRENCE and DISSENT (Hill, J.): Concurs there is jurisdiction to consider State’s appeal under K.S.A. 2019 Supp. 22-3603. Dissents from majority’s holding affirming the district court’s ruling. Believes the legal analysis and conclusions in Patton and Mejia correctly address the critical issue of whether Myers’ DWI convictions may be considered to elevate her current DUI to a felony offense. Would reverse and remand with directions to include the Missouri DWI convictions in her criminal history.

STATUTES: K.S.A. 2019 Supp. 8-1567, -1567(a), -1567(b), -1567(b)(1), -1567(b)(1)(D), -1567(i)(3), -1567(i)(3)(B) -1567(j), -1567(j)(1), -1567(j)(2),  -1567(j)(3), 21-5110, -6801 et seq., -6820, 22-3602, -3602(b)(1), -3603; K.S.A. 2018 Supp. 8-1567(b)(1)(D); K.S.A. 2017 Supp. 21-6811(e); K.S.A. 22-3215, -3216, 60-401 et seq.

 

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September 18 and 25, 2020 Digests

Posted By Administration, Monday, September 28, 2020

Kansas Supreme Court

 

CRIMINAL 

APPELLATE PROCEDURE—CONSTITUTIONAL LAW—CRIMINAL LAW—
EVIDENCE—JURY INSTRUCTIONS—SENTENCING—STATUTES
STATE V. WILLIS
JOHNSON DISTRICT COURT—AFFIRMED
NO. 117,436—SEPTEMBER 25, 2020

FACTS: Willis sucker-punched the victim, and then was present when Willis’ brother (James) killed the victim with a barrage of gun shots. Jury convicted Willis of first-degree murder and battery. Hard-50 sentence was imposed. During trial, district court instructed jury on aiding and abetting and self-defense as requested by Willis. Agent Lester testified about Willis’ rap L.L.C. (Duced Out Records [DOR]), and his conclusion that James Willis provided security services for DOR. Agent Lester also testified about finding gun and ammunition searches on James Willis’ smart phone. Willis appealed on claims consolidated by the court as claims of (1) jury instruction errors, (2) prosecutorial errors, (3) evidentiary claims, and (4) sentencing issues.

ISSUES: (1) Jury instruction errors; (2) prosecutorial errors; (3) evidentiary claims; and (4) sentencing

HELD: Invited error doctrine bars review of Willis’ attack on the jury instructions themselves. District court did not err by ruling these instructions as written prevented Willis from arguing that James Willis fired in self-defense.

            Challenged statements by prosecutor are examined finding no error. Prosecutor’s joke about how lawyers “add things and confuse things” was not outside the wide latitude afforded attorneys to explain their case to the jury. Prosecutor’s insistence that the only self-defense theory the jury was permitted to consider was Willis’ self-defense—not James Willis’ self-defense—was not error. And no error found in Willis’ claims that prosecutor misstated the evidence or argued facts not in evidence.

            District court did not abuse its discretion when it permitted Agent Lester to testify as to James Willis’ role within DOR. As in State v. Sasser, 305 Kan. 1231, 1243 (2017), the agent’s testimony was professional but not so scientific, technical, or specialized that it needed greater  court control. And district court did not err in permitting the smartphone-related evidence which was relevant because there was a sufficient similarity between the guns and ammunition depicted in the internet searches and the ammunition recovered at trial, see State v. Scott-Herring, 284 Kan. 172 (2007).

            District court did not impermissibly weigh aggravating and mitigating circumstances in this case because it did not find any mitigating factors. Willis waived or abandoned his inadequately briefed claim that district court’s reference to Willis accepting responsibility violated Fifth Amendment.

STATUTES: K.S.A. 2019 Supp. 21-6620(c)(1)(A), 22-3414(3), 60-456(a), -456(b); K.S.A. 2018 Supp. 21-6620(c)(1)(A), -6815(c)(1)(A)-(F); K.S.A. 60-401(b), -407(f), -445

 

Kansas Court of Appeals

CIVIL

INFORMED CONSENT—MEDICAL MALPRACTICE—PUNITIVE DAMAGES
ACORD V. PORTER
SEDGWICK DISTRICT COURT—AFFIRMED
No. 119,537—SEPTEMBER 25, 2020

FACTS: Reiford Acord had an outpatient ventral hernia surgical repair. Dr. Porter, a board-certified surgeon, and Dr. Resch, the chief surgical resident, were present. Acord was initially fine but deteriorated after a few days. An exploratory surgery revealed a perforation in Acord's bowel. Acord survived but spent two months in intensive care and continues to suffer ill effects from the perforation. The record shows that Acord was informed that a resident could participate in his procedure, but Acord does not remember this. Neither surgeon noticed the perforation when it happened. Dr. Resch thinks he performed most of the surgery, but no one knows for sure. Acord filed this medical malpractice action against the providers who were involved in his care. At some point, Acord sought to amend his petition to include a claim for punitive damages, but that request was denied. Prior to trial, the district court granted Dr. Porter's motion for summary judgment on Acord's informed consent and failure to supervise claims. The district court also granted Dr. Resch summary judgment on Acord's informed consent claim. The case proceeded to a jury trial. At the close of Acord's case in chief, the district court granted Dr. Resch's motion for summary judgment on a claim that he had not adequately prepared for surgery. The jury returned a defense verdict on the remaining counts and Acord appealed.

ISSUES: (1) Summary judgment on informed consent claims; (2) summary judgment on failure to supervise claim; (3) exclusion of evidence at trial; (4) error in instructing the jury on appropriate standard of care; (5) denial of motion to amend to add claim for punitive damages

HELD: Acord's responses to the defendants' statements of uncontroverted fact did not comply with Supreme Court Rule 141, as citations to generic medical records were insufficient. In addition, Acord failed to establish a genuine issue of material fact that would preclude summary judgment. Particularly, there is no evidence that having Dr. Resch perform the surgery was riskier than having Dr. Porter do the procedure. And Acord knew or should have known that the hospital was a teaching facility where medical residents routinely participate in patient care. In order to prevail on a failure to supervise claim, Acord needed to provide expert testimony establishing a breach of Dr. Porter's duty. He failed to do that here, and the district court properly dismissed this claim via summary judgment. The district court properly excluded testimony related to the claims which were dismissed on summary judgment. Because all the physicians involved in Acord's care and treatment held themselves to the standard of care as medical specialists, the jury was properly informed. The jury was instructed on the highest standard of care. Acord failed to provide a record adequate to determine whether the district court properly denied his motion to amend the petition to include a claim for punitive damages. And even if he had, Acord was unable to prove that either physician acted willfully, wantonly, or maliciously.

STATUTES: K.S.A. 2019 Supp. 60-209, -226(b)(6)(B), -256; K.S.A. 60-3703

CRIMINAL 

CRIMINAL PROCEDURE—SENTENCING—STATUTES
STATE V. BAKER
WYANDOTTE DISTRICT COURT—AFFIRMED
NO. 122,169—SEPTEMBER 18, 2020

FACTS: Baker convicted of aggravated domestic battery, an offense committed two days prior to the effective date of the 2019 amendment to K.S.A. 6811(e)(3). Applying the new statutory framework, district court scored Baker’s 2015 Missouri conviction for resisting arrest as a person felony because the circumstances enumerated in K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i)(b) and (c) were present in the elements of the Missouri offense. Baker appealed arguing his prior Missouri offense should have been scored as a nonperson felony pursuant to State v. Wetrich, 307 Kan. 552 (2018), and the plain language of K.S.A. 2019 Supp. 21-6811(e)(3)(B).

ISSUE: (1) Criminal history scoring of prior out-of-state conviction

HELD: Brief historical analysis of 2019 amendment of K.S.A. 21-6811(e)(3) is provided. The new statutory framework, which requires a sentencing judge to compare the enumerated circumstances listed in K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i) or (ii) to the elements of the prior out-of-state conviction, legislatively overrules the comparable offense analysis previously required by Wetrich. In Baker’s case, district court erred in finding the 2015 Missouri offense of resisting arrest (by fleeing from police) met the conditions in K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i)(b) and (c), but reached the right result because the prior offense matched the conditions in K.S.A. 2109 Supp. 21-6811(e)(3)(B)(i)(d).

STATUTES: K.S.A. 2019 Supp. 21-6801 et seq., -6811(e), -6811(e)(2), -6811(e)(2)(A), -6811(e)(3), -6811(e)(3)(B), -6811(e)(3)(B)(i), -6811(e)(3)(B)(i)(b), -6811(e)(3)(B)(i)(c), -6811(e)(3)(B)(i)(d), -6811(e)(3)(B)(ii), -6811(e)(3)(B)(iii); K.S.A. 2017 Supp. 21- 6811(e)(3)

 

FREE SPEECH—ORDINANCES
CITY OF WICHITA V. TROTTER
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 121,125—SEPTEMBER 25, 2020

FACTS: A Wichita municipal ordinance requires anyone who wishes to operate an "entertainment establishment" to obtain a license from the City. City Code defines "entertainment" and lists examples of businesses or activities which would require licensure. But once the license is obtained, the City does not regulate or restrict the type or content of entertainment provided so long as licensees follow requirements regarding capacity, security, controlled substances, alcohol, noise, and other considerations.

In 2017, Wichita police suspected that a building was being used as an unlicensed entertainment establishment. Trotter was contacted as the club's owner. He said that he ran a private membership organization and would not let police inspect the premises. After obtaining a search warrant, police entered the building and saw— among other things—a DJ booth and a dance floor. There was also alcohol in the building even though Trotter did not have a liquor license. The City charged Trotter with operating a club without a liquor license or an entertainment-establishment license. A municipal court convicted him of operating a club without an entertainment license. He appealed to district court and, for the first time, argued that the entertainment license ordinance was unconstitutionally vague and over-broad. He also claimed the ordinance was an invalid limitation on his speech under the First Amendment to the United States Constitution. The district court denied the motion, a jury convicted Trotter as charged, and he appealed.

ISSUES: (1) Whether ordinance violates the First Amendment; (2) whether ordinance is vague or over-broad; (3) standing to challenge licensure requirements; (4) sufficiency of the evidence; (5) misstatements during closing argument; (6) answering a jury question

HELD: The licensing framework created by the ordinance does implicate Trotter's freedom of expression and cannot be evaluated solely as a function of the City's police powers. But the ordinance's restraint is both prospective and content neutral, meaning it does not violate First Amendment protections on freedom of expression. The licensing framework satisfies City concerns relating to public nuisances and safety. Wichita's licensing framework is neither vague nor over-broad. The definitions used in the ordinance put the public on notice as to what conduct triggers licensure requirements. Trotter never applied for an entertainment-establishment license so he lacks standing to challenge any of the requirements. There was sufficient evidence to prove that Trotter's business provided "entertainment" within the meaning of the ordinance. The prosecutor properly informed the jury about the difference between a truly private business and a club which is open to the public. The district court properly answered a jury question about the scope of the licensure requirements.

STATUTES: No statutes cited.

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September 11, 2020

Posted By Administration, Monday, September 14, 2020

Kansas Supreme Court

 

CIVIL

 

HABEAS CORPUS—INEFFECTIVE ASSISTANCE OF COUNSEL
KHALIL-ALSALAAMI V. STATE
RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,

DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,184—SEPTEMBER 11, 2020

 

FACTS: Khalil-Alsalaami was convicted of two counts of aggravated criminal sodomy. At trial, a primary issue was the voluntariness of custodial statements made by Khalil-Alsalaami to law enforcement. Issues included the accuracy of the Miranda warning, the fact that Khalil-Alsalaami's primary language is Arabic, and a question about whether Khalil-Alsalaami knew he was confessing to an actual crime. Trial counsel stipulated that Khalil-Alsalaami's partial confession was knowing and voluntary and did not object when that stipulation was introduced at trial. After an unsuccessful direct appeal, Khalil-Alsalaami filed a K.S.A. 60-1507 motion challenging the effectiveness of his trial counsel. The district court denied the motion, finding that the stipulation and the failure to object to introduction of the agreement was a strategic decision. Khalil-Alsalaami appealed, and the Court of Appeals unanimously reversed and remanded, finding that trial counsel was constitutionally ineffective. The ruling gave particular mention to the failure of law enforcement to provide an interpreter for Khalil-Alsalaami. The State's petition for review was granted.

 

ISSUES: (1) Deficient performance of trial counsel; (2) prejudice resulting from deficient performance

 

HELD: The Court does not believe it is necessary to decide whether the lack of an interpreter renders Khalil-Alsalaami's confession involuntary. Instead, given the plain testimony from trial counsel, it is easy to see that counsel's performance was ineffective. The admissibility of Khalil-Alsalaami's confession was the paramount issue in the case, and counsel's failure to even attempt to keep it from the jury cannot be attributed to trial strategy. It is easy to see that prejudice occurred. This case must be returned to district court for a new trial.

 

CONCURRENCE: (Beier, J., joined by McAnany, S.J.) The majority reached the right decision. But it should also have found that Khalil-Alsalaami's confession was per se involuntary due to the lack of an interpreter, which was required by the plain language of K.S.A. 75-4351.

 

DISSENT: (Biles, J., joined by Stegall, J.) Counsel's motion to suppress would not have succeeded at trial, so a failure to file it could not have amounted to prejudicial ineffective assistance of counsel.

 

STATUTES: K.S.A. 60-1507, 75-4351

 

MORTGAGES
FAIRFAX PORTFOLIO LLC V. CAROJOTO LLC
WYANDOTTE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED

DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 118,712—SEPTEMBER 11, 2020

 

FACTS: Fairfax owned commercial real estate which was secured by a promissory note and mortgage held by Carojoto. Fairfax was in default on the note at the time Carojoto acquired the debt. Without warning, Carojoto took possession of the property and filed a mortgage foreclosure action. Carojoto eventually purchased the property at a sheriff's sale. Fairfax filed this action, claiming Carojoto improperly took possession of the property prior to the foreclosure action, causing damages. Carojoto sought dismissal, claiming it was allowed to take possession of the property under the terms of the mortgage. The district court agreed. The Court of Appeals reversed, holding that Carojoto was not allowed to rely on provisions of executory agreements. A petition for review was granted.

 

ISSUE: (1) Ability to take property

 

HELD: It has long been established that in the absence of stipulations to the contrary, a mortgagor of real property may retain possession of that property. The mortgage instrument alone cannot provide a sufficient stipulation for possession. Even if Carojoto included such language in its mortgage instrument, it cannot be enforced.

 

CONCURRENCE: (Stegall, J.) Justice Stegall concurs in the judgment solely on the grounds of stare decisis, which should be followed especially closely in instances where there is economic reliance.

 

DISSENT: (Biles, J.) The mortgage provision allowing possession is a "stipulation to the contrary" which overrides the general rule that a mortgagor is allowed to hold property.

 

STATUTES: K.S.A. 2019 Supp. 60-212(d); K.S.A. 58-2301

 

Criminal

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS—SENTENCING—STATUTES

STATE V. COLEMAN

WYANDOTTE DISTRICT COURT—AFFIRMED

NO. 120,246—SEPTEMBER 11, 2020

 

FACTS: Coleman’s 1999 conviction for first-degree premeditated murder and aggravated assault convictions were affirmed but case was remanded for resentencing because district court considered two aggravating factors not found in the statute to impose a hard-40 life prison term. 271 Kan. 733 (2001). Coleman again sentenced in 2001 to a hard-40 life term which was then affirmed in 2003 (unpublished). Coleman filed 2018 motion to modify his sentence to require no mandatory prison term, citing Alleyne v. United States, 570 U.S. 99 (2013), and State v. Soto, 299 Kan. 102 (2014). District judge summarily denied the motion, noting in part Coleman’s earlier K.S.A. 60-1507 motion. Coleman appealed.

 

ISSUE: (1) Motion to modify sentence

 

HELD: Appeal involves constitutional issues and questions of statutory interpretation.  Developing caselaw regarding sentence enhancement based on judicial fact finding is summarized. Coleman’s motion is not proper under K.S.A. 22-3504 (to correct an illegal sentence) or under K.S.A. 60-1507 (a collateral attack on an unconstitutional sentence), and Alleyene and Soto do not operate retroactively to provide a remedy in this case. Coleman cites K.S.A. 2019 Supp. 21-6628(c), but under analysis in State v. Thurber, 308 Kan. 140 (2018), that statute does not apply. District court judgment is affirmed.  

 

STATUTES: K.S.A. 2019 Supp. 21-6628(b), -6628(c), 60-1507(f)(1), -1507(f)(2); K.S.A. 2016 Supp. 21-6622(h); K.S.A. 21-4635, -4629, 60-1507,  22-3504

 

CONSTITUTIONAL LAW—CRIMINAL LAW—JURY INSTRUCTIONS

STATE V. KEYES

GRANT DISTRICT COURT—REVERSED AND REMANDED

NO. 118,894—SEPTEMBER 11, 2020

 

FACTS: Jury convicted Keyes of first-degree premeditated murder for fatally shooting victim in the chest and head. District court denied Keyes’ request to instruct jury on self-defense and involuntary manslaughter finding the evidence failed to support either instruction. Keyes appealed, claiming in part reversible error by the district court’s refusal to give the requested instructions. State argued a self-defense instruction was not justified where Keyes provoked the victim by taking a gun to the victim’s trailer and threatening the victim, and any error was harmless because Keyes’ testimony was implausible.

 

ISSUE: (1) Jury instruction

 

HELD: Based on evidence introduced at trial, a self-defense instruction was both legally and factually appropriate. State’s theory ignores Keyes’ testimony, if believed, that it was necessary to kill the victim in order to defend himself. Viewing the evidence in light most favorable to Keyes, district court erred in not instructing jury on self-defense and the court is not convinced there is no reasonable probability this error affected the outcome of the trial. Keyes’ additional claims in the appeal are not reached. Reversed and remanded.

 

CONCURRENCE (Leben, J.): Joins the court’s opinion in full but also comments on the standard of review. Because Keyes’ constitutional right to present a defense is at issue, the constitutional harmless-error test should apply. No need to decide which standard should apply here because State has not shown the district court’s error was harmless under either standard. This standard-of-review question can be addressed in a future case with briefing. 

 

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5222, -5226

 

 

 

Court of Appeals

 

CIVIL

 

FORECLOSURE—REAL ESTATE
BUCKLIN NATIONAL BANK V. HAYSE RANCH
KIOWA DISTRICT COURT—REVERSED AND REMANDED
NO. 121,690—SEPTEMBER 11, 2020

 

FACTS: In 2002, L.P.P. Mortgage Ltd. obtained a default judgment of foreclosure against Helen Hayse and her son, Paul. The district court confirmed the sheriff's sale and ordered a statutory redemption period of three months. The day before the redemption period ended, Helen assigned her rights of redemption to Celia Pruitt for $100. Pruitt then filed notice of her exercise of the right of redemption and deposited the total amount of Helen's debt to redeem the property. Pruitt followed up by filing an affidavit with the Register of Deeds in which she declared herself to be the owner of the property by virtue of her acquisition and subsequent exercise of redemption rights. Helen and Paul had previously used the property to secure a series of loans from Bucklin National Bank. Helen died intestate in January 2017, and after these loans went unpaid the Bank initiated foreclosure proceedings. Pruitt intervened in the action seeking a declaratory judgment that she was the rightful owner of the property. The Bank moved for summary judgment and the district court granted it, finding that exercising an assigned right of redemption was ineffective to pass title absent a document of conveyance. After her motion for new trial was denied, Pruitt appeals.

 

ISSUES: (1) Action to quiet title; (2) whether a deed is necessary to convey title

 

HELD: A statutory right of redemption is different than the common law equitable right of redemption, the latter of which arises before the foreclosure sale. Under the statutory scheme in Kansas, an assignee of a property owner's redemption rights obtains all property rights of the owner upon exercise of those redemption rights. Pruitt obtained equitable title to the property when she exercised the redemption rights that she purchased from Helen. It is not necessary to have a deed of conveyance to prove ownership of property. Pruitt took many official steps to register her equitable title, and that was enough to secure her primary right to the property. But the case must be remanded to determine whether Pruitt has a colorable claim of adverse possession.

 

STATUTE: K.S.A. 2019 Supp. 60-2414, -2414(h), -2414(i)

 

DIVORCE—MAINTENANCE
IN RE MARRIAGE OF WELTER
MIAMI DISTRICT COURT—REVERSED AND REMANDED
NO. 121,605—SEPTEMBER 11, 2020

 

FACTS: Steven and Keira Welter divorced in 2016. The decree ordered Steven to pay monthly maintenance of $781 for 73 months. One of the conditions on maintenance is that payments would stop if Keira remarried or was cohabitating, which was defined as living with a non-relative adult for substantially consecutive periods of time in excess of 30 days, even if the relationship was not marriage-like. Steven's maintenance payments were often suspended in the years after the divorce, primarily because Keira refused to comply with certain requirements of the divorce decree. In December 2018, Steven moved to terminate maintenance on grounds that Keira was cohabitating with her boyfriend. Keira objected, claiming she lived with her boyfriend only because she could not afford to live independently due to the lack of maintenance payments. After hearing arguments, the district court denied Steven's motion to terminate and instead modified the maintenance agreement to shorten Steven's obligation by nine months – the length of time Keira was cohabitating. Steven appealed.

 

ISSUE: (1) District court's authority to modify maintenance

 

HELD: It is undisputed that Keira violated the cohabitation termination condition of the divorce decree. The automatic termination clause of the decree means that Steven's maintenance obligation automatically terminated after June 2018. It does not matter that, at the time Keira was cohabitating, Steven's maintenance obligation has been temporarily suspended by the district court. Once the terminating event of cohabitation occurred, the district court lost the authority to modify Steven's maintenance obligation and equity does not require a different result.

 

DISSENT: (Atcheson, J.) All of the decisions made by the district court were within its discretion and authority, and the majority opinion places too many restrictions on district court action.

 

STATUTE: K.S.A. 2019 Supp. 23-2711(a)(3), -2902, -2903, -2904

 

CRIMINAL

 

CRIMINAL PROCEDURE—SENTENCING—STATUTES

STATE V. PATTON

RENO DISTRICT COURT—AFFIRMED

NO. 120,434—SEPTEMBER 11, 2020

 

FACTS: State charged Patton in November 2016 with DUI. In 2018, jury convicted him on that charge and district court imposed a 12 month sentence upon finding this was Patton’s fourth or subsequent DUI conviction. On appeal Patton claimed the prosecutor erred in closing argument by misstating the evidence. He also claimed district court erred under rule outlined in State v. Wetrich, 307 Kan. 552 (2018), by using Patton’s 2003 Oklahoma and 2007 Missouri DUI convictions to enhance the sentence.

 

ISSUES: (1) Prosecutorial error; (2) classification of prior out-of-state convictions to enhance sentence

 

HELD: Given the entire context of prosecutor’s closing arguments, prosecutor’s statements that Patton had been drinking on New Year’s Day 2016, and that the standard field sobriety tests showed Patton was under the influence, were not inconsistent with evidence presented at trial.

            Patton and the State agreed the rule Weitrich controls because K.S.A. 2015 Supp. 8-1567(i) was the rule in effect at the time Patton committed the DUI offense. But under State v. Reese, 300 Kan. 650 (2014), when a court enhances a current DUI sentence under K.S.A. 8-1567(i) it must apply the sentencing rule in effect at the time of sentencing. Applying the 2018 amendment to K.S.A. 8-1567(i) and (j), district court did not err in sentencing Patton as a fourth or subsequent DUI offender.

           

STATUTES: K.S.A. 2019 Supp. 8-1567(a), 22-3504(a); K.S.A. 2018 Supp. 8-1567, -1567(i), -1567(i)(1); K.S.A. 2017 Supp. 21-6811(e)(2)(A), -6811(e)(3); K.S.A. 2015 Supp. 8-1567, -1567(a), -1567(a)(3), -1567(b)(1)(D), -1567(i), -1567(j)

 

 

 

Tags:  constitutional law  criminal law  criminal procedure  divorce  foreclosure  habeas corpus  ineffective assistance of counsel  jury instructions  Kiowa District Court  maintenance  mortgages  motions  real estate  Reno District Cou  Riley District Court  sentencing  statutes  Wyandotte District Court 

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September 4, 2020 Digest

Posted By Administration, Tuesday, September 8, 2020

Kansas Court of Appeals

criminal 

criminal law—criminal procedure—evidence—juries—prosecutors
state v. olsman
elk district court—affirmed in part,
reversed in part, vacated in part
no. 120,119—september 4, 2020

FACTS: Jury convicted Olsman of kidnapping and attempted rape. On appeal he claimed: (1) insufficient evidence supported the kidnapping conviction because confinement of the victim was incidental and inherent in the attempted rape; (2) district court erred in ruling the testimony of victim’s sister about victim’s reputation for dishonesty was inadmissible for lack of foundation; (3) district court erroneously instructed jury on kidnapping; (4) in closing argument and rebuttal prosecutor improperly commented on Olsman’s and victim’s credibility and inflamed passions of jury; (5) district court erred in denying Olsman’s motion for a new trial which argued in part that a deputy improperly referred to Olsman having been in jail on a previous occasion; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence—kidnapping, (2) exclusion of testimony, (3) jury instruction—kidnapping, (4) prosecutorial error, (5) motion for new trial, (6) cumulative error

HELD: Olsman’s kidnapping conviction is reversed and kidnapping sentence is vacated. State v. Buggs, 219 Kan. 203 (1976), State v. Cheers,  231 Kan. 164 (1982), and State v. Richmond, 250 Kan. 375 (1992), are factually distinguished as involving takings or confinements that substantially facilitated the commission of other crimes. Unpublished Court of Appeals case, is found to be similar to Olsman’s case. Applying Buggs analysis, evidence in this case is insufficient to support the kidnapping conviction.

            District court did not err in relying on State v. Penn, 41 Kan. App. 2d 251 (2009), for the foundational requirements for admitting reputation evidence. Olsman’s argument that Penn was wrongly decided is unpersuasive. Under circumstances in case, including lapse of five years between events that formed the basis for victim’s reputation and events leading to trial, district court’s determination was not an abuse of discretion. Even if district court may have incorrectly stated that victim and her sister were not of the same community, Olsman failed burden of establishing that they were. Olsman’s constitutional claim fails with no showing of error in district court’s evidentiary ruling.

            Reversal of Olsman’s kidnapping conviction renders his jury instruction claim moot.

            Prosecutor’s limited and isolated closing argument statements, in particular referring to Olsman as a “liar,” were improper but overall nature of prosecutor’s argument was premised in reasonable inferences fairly derivable from the evidence and directed jury to reach its own conclusions. Prosecutor’s rebuttal comments were an improper appeal to jury for sympathy toward the victim. In light of entire record, however, no reasonable probability these comments affected outcome of the trial.

            Olsman fails to explain how district court’s admonishment to the deputy and its curative instruction to the jury was insufficient to cure any prejudicial effect of the deputy’s statement. No abuse of district court’s discretion is demonstrated.

            With reversal of Olsman’s kidnapping conviction, only identified errors bearing on cumulative error analysis are prosecutor’s comments and deputy’s testimony. On overall strength of evidence the limited prejudice from these two harmless errors did not aggregate into reversible error.    

CONCURRENCE and DISSENT (Warner, J.): Joins majority’s analysis of all claims but for its conclusion that Olsman’s confinement of victim within his home was insufficient to support the jury’s kidnapping verdict. Jury decided whether Olsman’s grabbing of victim’s arm and preventing her from leaving was an independently significant act, and sufficient evidence supported its assessment. Majority ventured into jury’s fact-finding role by reweighing the evidence supporting Olsman’s kidnapping conviction.

STATUTES: K.S.A. 2019 Supp. 22-3501(1), 60-455, -460(z); K.S.A. 2015 Supp. 21-5408(a)(2), -5503(a)(1)(A); K.S.A. 60-419, -420. -422(d), -446, -447(a), -460(z)

Tags:  criminal law  criminal procedure  Elk District Court  evidence  juries  prosecutors 

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August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE SUSAN ELIZABETH VAN NOTE
NO. 16,327—AUGUST 26, 2020

FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas.

HELD: The Court accepts the surrender of Van Note's license to practice law in Kansas and she is disbarred.

criminal

appellate procedure—contracts—criminal procedure—evidence—motions
state v. Braun
ellis district court—reversed and remanded; court of appeals—reversed
No. 113,762—august 28, 2020

FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun’s arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court’s denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun’s conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for review granted on sole issue of whether panel erred in finding harmless error.

ISSUE: Stipulated facts in support of conviction on alternative charge

HELD: Braun’s conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun’s motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred by not considering and applying the conditions that limited the binding nature of the parties’ stipulation. District court’s judgment is reversed and case is remanded for further proceedings related only to the alternative count of DUI under K.S.A. 2012 Supp. 8-1567(a)(2).

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 2012 Supp. 8-1001(k), -1567(a)(2), -1567(a)(3)

constitutional law—criminal law—criminal procedure—motions—sentencing—statutes
state v. Juarez
lyon district court—affirmed; court of appeals—affirmed
no. 118,543—august 28, 2020

FACTS: Juarez entered plea to aggravated battery of prison guard. District court found Juarez guilty but did not notify him of obligation to register as a violent offender under Kansas Offender Registration Act (KORA), and KORA did not list aggravated battery as a crime that automatically required registration. Juarez remained confined until sentencing hearing six weeks later. At sentencing, district court exercised its discretion to require Juarez to register as a violent offender under KORA. Juarez objected to lack of notice to register but offered no evidence on the issue. Sentencing continued to address restitution. Juarez again objected to lack of notice but again offered no evidence and asked for no additional time to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals affirmed in unpublished opinion, relying on State v. Marinelli, 307 Kan. 768 (2018). Sole issue on review is whether the notice provided by the district court violated Juarez’ right to due process.

ISSUE: Due process—notice of obligation to register as violent offender

HELD: Validity of the district court’s registration order is not challenged and is presumed valid. District court’s failure to provide timely notice of Juarez’s obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of procedural due process because Juarez failed to demonstrate prejudice. He neither presented additional evidence nor asked for the opportunity to do so with respect to district court’s exercise of discretion to order registration, and he remained incarcerated with no responsibility to register between the time the district court should have provided notice and the time it actually did so.  

CONCURRENCE (Biles, J.): Concurs with the result but believes Marinelli controls disposition. District court’s timing error does not excuse the registration obligation, and Juarez did not show any prejudice.

CONCURRENCE (Stegall, J.): Concurs that Juarez’ due process rights were not violated, but does so because district court’s registration order was not valid. Based on State v. Thomas, 307 Kan. 733 (2018), once Juarez was convicted the district court lost its opportunity to create the necessary precondition for a registration obligation to spring into existence through judicial fact-finding. When a district court does not make the necessary fact-finding at time of conviction - and the notice is not given - no process has been denied because the defendant is not an offender required to register under KORA.

DISSENT (Rosen, J.)(joined by Beier, J.): Would find Juarez’ due process rights were violated. Stands by his dissents in previous cases that KORA is punitive in effect, and thus is a consequence of Juarez’ plea. Marinelli is distinguished. Here, Juarez plead no contest to a crime while completely unaware the court would later require him to register under KORA, and he was never offered the opportunity to withdraw that plea by demonstrating good cause (pre-sentencing motion) instead of having to show manifest injustice (post-sentencing motion.  

STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 22-4901 et seq., -4902(e)(1), -4902(a)(5),  -4904(a)(1)(A); K.S.A. 22-4902, -4905

appeals—appellate procedure—criminal law—statutes
state v. Lindemuth
shawnee district court—reversed and remanded; court of appeals—affirmed
No. 116,937—august 28, 2020

FACTS: Jury convicted Lindemuth of one count of criminal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Appeals reversed, holding trial court erred by rejecting proposed jury instruction on workplace defense. 55 Kan.App.2d 419 (2018). State sought review of panel’s decision on factual appropriateness of the workplace defense instruction. Days prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad. Lindemuth filed Supreme Court Rule 6.09 letter arguing his appeal was affected and requesting reversal of his conviction as in Johnson. Supplemental briefing ordered.

ISSUE: Change of law—constitutional error

HELD: Panel’s judgment is affirmed as right for the wrong reason. Lindemuth’s conviction cannot stand after Johnson, regardless of outcome on State’s issue for review. Like Johnson, the trial record provides no basis for court to discern whether jury concluded the State had proved beyond a reasonable doubt that Lindemuth committed criminal threat intentionally, and court cannot conclude the State met its burden of showing the constitutional error was harmless. District court’s judgment is reversed and case is remanded with directions.

DISSENT (Biles, J.)(joined by Stegall, J.): Would find the constitutional error harmless under the rationale in Justice Stegall’s dissenting opinion in Johnson, and would keep the case to reach the instructional error claim.

DISSENT (Rosen, J.): Would find the constitutional error harmless. While there was strong evidence supporting intentional conduct in Johnson, he agreed with majority that there was also evidence of recklessness.  Here he sees no evidence of recklessness where Lindemuth simply denied making any threatening statements.

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), -5223(a), -5415(a)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal procedure - sentencing
state v. Dominguez
sedgwick district court - reversed and remanded
no. 121,618—august 28, 2020

FACTS: Dominguez sentenced in August 2017 to prison term and granted probation for 24 months. In October 2017 district court found probation violation and imposed three-day quick dip jail sanction. A September 2018 warrant issued for six probation violations. At a July 10, 2019, hearing district court revoked probation, applying the July 1, 2019, amendment to the intermediate sanctioning scheme which removed the requirement for a 120-day or 180-day sanction before revocation could be ordered. Dominguez appealed, arguing for first time that district court should have applied either the law in effect at time of her 2018 probation violations or the law in effect when she committed her 2017 crimes of conviction.

ISSUE: Revocation of probation—K.S.A. 2019 Supp. 22-3716

HELD: Following the reasoning in State v. Coleman 311 Kan. 332 (2020), and finding unpublished Court of Appeals’ opinions on the same issue persuasive, court holds the 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does not apply retroactively to probation violators whose crimes were committed before the effective date of the amendment.  State’s reliance on State v. Tearney, 57 Kan.App.2d 601 (2019), is misplaced.  Reversed and remanded for new dispositional hearing. District court must impose either a 120-day or 180-day prison sanction before revoking Dominguez’ probation unless the court finds a valid statutory ground to circumvent further intermediate sanctions.

STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, -3716(c), -3716(c)(1)(C), -3716(c)(10);  K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716

Tags:  appeals  appellate procedure  constitutional law  contracts  criminal law  criminal procedure  disbarment  Ellis District Court  evidence  Lyon District Court  motions  Sedgwick District Court  sentencing  Shawnee District Court  statutes 

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July 21, 2020 Digests

Posted By Administration, Monday, August 24, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—evidence—jury instructions
state v. green
Montgomery District Court—affirmed
no. 118,366—August 21, 2020

FACTS: For offenses related to the killing of Green’s ex-wife’s boyfriend, a jury convicted Green of first-degree premeditated murder, aggravated burglary, and arson. On appeal he claimed: (1) district judge should have instructed jury on defense of voluntary intoxication; (2) district judge should instructed jury on lesser included offense of voluntary manslaughter; (3) district judge’s failure to give those two instructions deprived Green of his constitutional right to a jury trial; (4) the failure to instruct on voluntary manslaughter pushed jury to convict on first-degree premeditated murder even if jurors had reasonable doubt that State had proved its case; (5) district judge erred in admitting into evidence a videotaped interrogation of Green because officers repeatedly challenged his honesty and truthfulness during that interrogation; (6) district judge erred in refusing to give cautionary instruction about testimony from jailhouse informants; and (7) cumulative error denied him a fair trial.

ISSUES: (1) Jury instruction—voluntary intoxication; (2) jury instruction—voluntary manslaughter; (3) right to a jury trial; (4) constitutional right to due process; (5) evidence—videotaped statements; (6) cautionary instruction on informant testimony; (7) cumulative error

HELD: Under facts in case, an instruction on voluntary intoxication was not factually appropriate. No evidence of impairment that would prevent the formation of the necessary criminal intent. Instead, Green relies on evidence of his intoxication before and after the crime.

            District judge correctly denied Green’s request for a voluntary manslaughter instruction. No evidence that the sleeping victim did anything as Green entered his house that could be characterized as provocation.

            District judge’s failure to instruct jury on voluntary intoxication and voluntary manslaughter did not violate Green’s constitutional claim of being denied right to a jury trial where no evidence supported Green’s requests for those instructions.

            Green’s argument for extending Beck v. Alabama, 447 U.S. 625 (1980), to noncapital cases is rejected. Under facts in case, no error under Beck’s letter or its spirit.

            Green’s challenge to the admission of videotaped statements he made during police interview, raised for the first time on appeal, is not considered. Even if error to not redact the interviewers’ comments on credibility, the error would be far from dispositive. Court finds no established exception to the preservation problem, and notes this case is a poster child for adherence to the contemporaneous rule.

            District judge did not err in denying Green’s request for a cautionary instruction on informant testimony. Neither jailhouse informant was acting as an agent for the State when the informant first received incriminating information from Green, and multiple witnesses and other evidence corroborated each informant’s testimony.

            Cumulative error doctrine not applicable where there is no error or only a single error.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Green was impaired at the time of the crime. Disagrees with that portion of majority’s decision to the extent it implies the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTES: K.S.A. 2019 Supp. 21-5108(c), 60-261; K.S.A. 2018 Supp. 21-5205(b), -5404(a)(1); K.S.A. 60-404, -455, -1507

constitutional law—criminal law—criminal procedure—
evidence—prosecutors—statutes
state v. moore
reno district court—affirmed
no. 121,040—august 21, 2020

FACTS: Moore was convicted of first-degree premeditated murder. The trial judge allowed State to introduce incriminating statements Moore made during police interview, finding Moore made no unequivocal request for counsel. Trial judge also denied Moore’s request for voluntary intoxication instructions on first-degree premeditated murder and lesser-included crime of intentional second-degree murder. On appeal Moore claimed: (1) district judge should have suppressed evidence of his incriminating statements; (2) it was error to refuse to give voluntary intoxication instructions; (3) prosecutor committed error in closing argument; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Motion to suppress; (2) voluntary intoxication jury instruction; (3) prosecutorial error; (4) cumulative error

HELD: District judge did not err in denying the motion to suppress. Moore’s statement that “Well, I guess it’s lawyer time now then,” considered as a whole and in context, is ambiguous. And his statement ten minutes later that he was “done, all right,” followed by continued talking on his part did not transform his earlier statement into an unambiguous invocation of right to counsel.

            District judge did not err in denying voluntary intoxication instructions. Even assuming such an instruction was legally appropriate, it was not factually appropriate where there was no evidence of impairment negatively affecting Moore’s ability to form the requisite intent.

            No error found in prosecutor’s closing argument by stating that premeditation can be seen from Moore standing there and pulling the trigger over and over again, and by decrying the American tradition of criticizing the police. These statements did not make an equivalent to the forbidden argument that premeditation can be formed instantaneously, and did not appeal to jurors’ passions or prejudices. Prosecutor’s rebuttal statement that Moore may have been eliminating his competition was error because this unsupported speculation on Moore’s motive  argued facts not in evidence. In light of overwhelming evidence against Moore, however, this error was harmless.

            Cumulative error doctrine not applicable where only a single instance of a harmless prosecutorial error found.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Moore was impaired at the time of the crime. Disagrees with that portion of majority’s discussion on the issue to the extent it relies on State v. Green, __ Kan. __ (this day decided), that finds the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5205(b)

appeals—constitutional law—criminal law—
criminal procedure—jury instructions—statutes
state v. pattillo
shawnee district court—affirmed
no. 118,941—august 21, 2020

FACTS: Pattillo drove the van in which an occupant fired shots, killing Miller and hitting the residence which was occupied by Miller’s seven-year-old nephew. Jury convicted Pattillo of felony murder, aggravated assault for threatening Miller with a gun, felony discharge of a firearm, and aggravated endangering of a child. On appeal, Pattillo challenged whether the underlying felonies supported the felony-murder conviction, and whether sufficient evidence supported the convictions. He also claimed his convictions for discharge of a firearm and felony murder violated both the Double Jeopardy clause and K.S.A. 2019 Supp. 21-5109(b), and claimed the trial judge erred in instructing the jury.

ISSUES: (1) Underlying felonies—merger doctrine; (2) underlying felonies—sufficiency of the evidence; (3) underlying felonies—multiplicity; (4) multiple convictions and punishments; (5) jury instructions

HELD: Merger doctrine applies to Patillo’s aggravated assault conviction, and under facts in case, the aggravated assault merged with the homicide. If this were the only underlying felony, the felony-murder conviction would be reversed.

            Pursuant to K.S.A. 2019 Sup. 21-5402(c)(1), merger doctrine does not apply to Pattillo’s convictions for aggravated endangering a child and discharge of a firearm at a dwelling, but under facts in case, sufficient evidence supports both underlying felonies. Sufficient circumstantial evidence that Pattillo was aware of the risk to the seven-year-old who lived in the dwelling and consciously disregarded that risk. Statutes for child endangerment and aggravated child endangerment are compared to reject Pattillo’s argument that State was required to prove he knew a child was in the house at the time of the shooting. No language in K.S.A. 2019 Supp. 21-5601(b)(1) or the definition of reckless conduct requires that a person endangering a child must know a child is in danger. State v. Herndon, 52 Kan.App.2d 857 (2016), rev. denied 306 Kan. 1324 (2017), is factually distinguished. Sufficient evidence also supports Pattillo’s conviction for criminal discharge of a firearm at a dwelling, and Miller’s death occurred during the res gestae of the acts of discharging a weapon at a dwelling and of endangering a child.

            Cumulative punishments for both criminal discharge of a firearm and felony murder violate neither the Double Jeopardy Clause nor K.S.A. 2019 Supp. 21-5109. Same elements test in State v. Schoonover, 281 Kan. 453 (2006), is not employed where the legislature has expressed its intent to allow cumulative punishments for felony murder and those underlying felonies that do not merge with the homicide, such as discharge of a firearm at a dwelling. Pattillo can be sentenced for both felony murder and the enhanced punishment for discharging a firearm resulting in great bodily harm.

            No merit to Pattillo’s jury instruction claims. Invited-error doctrine precludes review of Patillo’s claims regarding the felony-murder jury instruction and the criminal discharge instruction. And Pattillo failed to show clear error in district judge’s failure to instruct jury on the lesser-included offenses of criminal discharge or of endangering a child.

STATUTE: K.S.A. 2019 Supp. 21-5109, -5109(b), -5109(b)(1), -5109(b)(2) -5202(j), -5402(a)(2), -5402(c), -5402(c)(1)(S),  -5402(c)(2), -5402(c)(2)(D), -5601(a), -5601(b)(1), -5601(c)(1), -6308, -6308(a)(1)(A), -6308(a)(3)(B), -6308(b), -6308(b)(1)(A), -6308(b)(1)(B), 22-3414(3)

K.S.A. 2015 Supp. 21-5402(c)(1)(O), -5402(c)(1)(S) -5601(b)(1). -6308(a)(1)(A)

 

Kansas Court of Appeals

CRIMINAL

EVIDENCE—JOINDER—PRIOR CRIMES
STATE V. BROWN
SALINE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,460—AUGUST 21, 2020

FACTS: In 2015 Brown was charged with three counts of rape and one count of aggravated indecent liberties for crimes involving his stepdaughter, K.N. While he was in custody, Brown wrote both K.N. and A.N., the victim's mother and his long-time companion. The contents of the letters caused the State to charge him with one count each of intimidation of a victim and a witness. Over Brown's objections, the information was consolidated for one trial. After a jury trial, Brown was convicted of all charges except for intimidation of a victim. He appealed.

ISSUES: (1) Admission in evidence of prior acts of domestic violence; (2) consolidation of information for one trial; (3) denials of motions for mistrial

HELD: At trial, the district court admitted evidence that Brown significantly damaged property at the home during arguments with A.N. The evidence was ostensibly admitted to prove why K.N. would be fearful to disclose the sexual abuse, even though the evidence showed that K.N. did not witness these events. There was extensive testimony at trial about these domestic violence events. Although the prior-crimes evidence was relevant and material, its probative value was diminished given the lengthy timelines over which the abuse occurred and the undisputed fact that K.N. did not witness the behavior. And the State never asked K.N. at trial if her failure to report was due, at least in part, to Brown's violent tendencies. The exhaustive testimony about Brown's prior crimes, the diminished probative value of the evidence, and the fact that the State could have proven the same thing with less prejudicial evidence, results in the conclusion that the district court erred by admitting the evidence. This error cannot be considered harmless and the case must be remanded for a new trial. It is undisputed that the State established the legal requirements to consolidate all charges. The letters to A.N. and K.N. put Brown's character into dispute that prejudiced him with the jury, all for little probative value. The district court erred by consolidating these cases for trial. There is no need to review errors in the district court's rulings on Brown's motions for mistrial. This case has already been reversed for two new trials.

STATUTE: K.S.A. 22-3202, -3303, 60-447(b), -455, -455(a), -455(b),

Tags:  appeals  constitutional law  criminal law  criminal procedure  evidence  joinder  jury instructions  prior crimes  prosecutors  statutes 

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August 14, 2020 Digest

Posted By Administration, Tuesday, August 18, 2020

Kansas Court of Appeals

criminal 

criminal procedure—sentencing—statutes
state v. vaughn
sedgwick district court—affirmed
no. 121,340—august 14, 2020

FACTS: Vaughn was convicted of possession of methamphetamine with intent to distribute, a crime committed while he was on felony bond for a previous crime. District court imposed prison sentence to run consecutively to Vaughn’s previous sentence finding Special Rule 10 applied and required consecutive sentences, and finding Vaughn failed to show any manifest injustice. Vaughn appealed, arguing the district court had discretion to sentence him concurrently, thus applied the wrong legal standard. State’s response in part acknowledged error in sentencing journal entry’s citation of Special Rule 9 instead of Special Rule 10, to be remedied by a nunc pro tunc order.

ISSUE: K.S.A. 2019 Supp. 21-6606(d)—consecutive prison sentence

HELD: The district court had no discretion to sentence Vaughn concurrently. If a district court sentencing a defendant for a new felony committed while on felony bond under K.S.A. 2019 Supp. 21-6606(d) imposes a prison sanction, that sentence must be consecutive unless the defendant shows manifest injustice. Here, district court’s finding of no manifest injustice is not challenged, and Vaughn’s statutory arguments and appeal to legislative history are rejected. K.S.A. 2019 Supp. 21-6606(d) and K.S.A. 21-6604(f)(4) are examined and interpreted, finding the two statutes are harmonious rather than conflicting.

STATUTES: K.S.A. 2019 Supp. 21-5705(a)(l), -5705(d)(3)(C), -6604(f)(4), -6606, -6606(a), -6606(b), -6606(c), -6606(d), -6606(e), -6819(a); K.S.A. 21-4603d, -4608

Tags:  criminal procedure  Sedgwick District Court  sentencing  statutes 

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August 7, 2020 Digests

Posted By Administration, Monday, August 10, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—
evidence—fourth amendment
state v. ellis
lyon district court—reversed and remanded;
court of appeals—affirmed
No. 120,046—august 7, 2020

FACTS: Police were called to check on welfare of a person (Ellis) in convenience store bathroom. Ellis stated she was okay and having stomach trouble. Police asked for identification, held Ellis’ drivers license to run warrant check, arrested her on an outstanding probation violation warrant, and found drugs and paraphernalia in subsequent search. State charged Ellis with drug offenses. She filed motion to suppress, arguing the seizure and subsequent search exceeded the scope of the encounter. State argued the attenuation doctrine set out in Utah v. Strieff, 579 U.S. __ (2016), legitimized the search. District court denied the motion and convicted Ellis in bench trial. Ellis appealed. Court of Appeals reversed, holding the investigatory detention exceeded the scope of the welfare check and the evidence obtained as a result should have been suppressed. 57 Kan.App.2d 477 (2019). State’s petition for review granted.

ISSUES: (1) Scope of welfare check; (2) attenuation doctrine

HELD: Under facts of the case, the officer lawfully engaged with Ellis and requested her identification. But police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention. Here, the officer had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Checking if Ellis “had some pick up order” exceeded the scope of the safety check. Ths constituted an unlawful seizure and consequent search.

              Application of the attenuation exception to the exclusionary rule is inappropriate on facts in this case. Factors in Strieff are applied finding all weigh against admissibility of the drug evidence under the attenuation doctrine: (1) a very short passage of time; (2) under Kansas caselaw the discovery of an outstanding warrant was not an attenuating factor in this case; and (3) the clarity of Kansas law forbidding the officer’s illegal conduct supports a finding of flagrant official misconduct. District court’s judgment is reversed and evidence seized subsequent to the initial conduct must be suppressed. Remanded for further proceedings.

CONCURRENCE (Stegall, J.)(joined by Luckert, C.J. and Wilson, J.): Concurs with the result but majority appears to back away from the more stringent requirements in Strief. Under Strief as outlined in State v. Tatro, 310 Kan. 263 (2019), when a preexisting valid warrant is discovered, the only question remaining is whether the unconstitutional conduct was purposeful or flagrant. Agrees with majority’s finding of flagrant misconduct, but would limit the analysis in these circumstances to that question only.  

STATUTES: None

constitutional law—criminal procedure—evidence—
jury instructions—prosecutors
state v. timley
shawnee district court—affirmed
No. 120,414—august 7, 2020

FACTS: Timley convicted of first-degree premeditated murder. During trial, Timley’s cellphone records including the cell towers accessed were admitted into evidence without objection, and a detective using Per Call Measurement Data (PCMD) from Sprint testified about the relative position of Timley’s phone throughout the day of the shooting. On appeal Timley claimed: (1) prosecutor erred during opening and closing arguments by making statements concerning the location of Timley’s phone at the time of the shooting; (2) district court erred in admitting the detective’s cell tower maps and accompanying testimony because detective lacked necessary expertise; (3) district court committed clear error by failing to instruct jury on intentional second-degree murder as a lesser included offense; (4) district court’s failure to instruct jury on lesser included offenses violated Timley’s right to due process; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) admission of evidence; (3)jury instruction on lesser included offense; (4) due process; (5) cumulative error

HELD: Prosecutor’s remarks during closing argument did not stretch the PCMD distance from a cell tower to Timley’s phone into a certitude, and thereby did not exceed the wide latitude extended to prosecutors. Prosecutor’s opening statement, by postulating that Timley’s phone was “exactly” at the site of the shooting, barely avoided error, but even if error, no possibility the prosecutor’s remark contributed to the verdict.

            Under facts of the case, no expert witness was needed. The detective’s exhibits and accompanying testimony did not require any specialized knowledge or expertise beyond that which he was demonstrated to possess.

            District court erred in failing to sua sponte instruct jury on lesser included offense of intentional second-degree murder, but under facts of the case, no clear error is found.

              In noncapital case, a district court’s failure to sua sponte instruct on lesser included offense does not violate a defendant’s constitutional right to due process. Based on State v. Becker, 311 Kan. 176 (2020), and State v. Love, 305 Kan. 716 (2017), no due process violation found in district court’s failure to issue a lesser included offense instruction sua sponte.

            Cumulative error claim is rejected. Only one harmless error found in district court’s failure to sua sponte instruct jury on a lesser included offense. Even if prosecutor’s opening statement was harmless error, it bore no relation to the instructional error.

CONCURRENCE (Biles, J.)(joined by Rosen, J. and Ward, S.J.): Disagrees that prosecutor’s opening statement was fair comment. Would hold it was error for prosecutor in opening statement to tell jury the cell tower data would reflect Timley’s exact location, but agrees the error is harmless for reasons stated by majority.

STATUTES: None

 

Kansas Court of Appeals

criminal

criminal law—insurance—jurisdiction—statutes
state v. rozell
wyandotte district court—affirmed
No. 121,094—August 7, 2020

FACTS: Rozell (Missouri resident) and Lopez (Wyandotte County, Kansas, resident) were in a car accident in Missouri. Rozell submitted bodily injury claim on Lopez’ State Farm insurance to a claims representative in Tennessee who discovered the Missouri hospital bill Lopez submitted had been altered to show a post-accident date. State charged Rozell in Wyandotte County with one count of making false information and one count of fraudulent insurance act, listing State Farm as the victim of Rozell’s crimes. District court granted Rozell’s motion to dismiss the charges for lack of jurisdiction. State appealed, arguing proximate result jurisdiction existed under K.S.A. 2017 Supp. 21-5106(b)(3) for a person who attempts to defraud a Kansas insurance policy issued to a Kansas resident, and Wyandotte County was the proper venue.

ISSUE: Proximate result jurisdiction

HELD: District court’s dismissal of the charges for lack of jurisdiction is affirmed. Kansas does not have proximate result jurisdiction to prosecute Rozell for making false information, K.S.A. 2019 Supp. 21-5824(a), or committing a fraudulent insurance act, K.S.A. 2019 Supp. 40-2,118(a), just because he allegedly intended to defraud a Kansas insurance policy. The law related to proximate result jurisdiction is reviewed. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person’s out-of-state criminal acts within Kansas only if the statutory language of that person’s charged crime considered such negative consequences. Here, the State failed to analyze the elements of the charged crimes. Neither the making false information statute, nor the fraudulent insurance act statute consider the negative consequences of a person’s out-of-state criminal acts in the language of the statute.

STATUTES: K.S.A. 2019 Supp. 21-40-2,118(a), -5106, -5106(b), -5106(b)(3), -5824(a), -5830(a)(2); K.S.A. 2017 Supp. 40-2,118(a), -2,118(e), -5106(b),-5106(b)(3), -5824(a) ; K.S.A. 1994 Supp. 21-3734(a)(2)

Tags:  Constitutional Law  criminal procedure  evidence  Fourth Amendment  insurance  jurisdiction  jury instructions  Lyon District Court  prosecutors  Shawnee District Court  statutes  Wyandotte District Court 

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