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May 22, 2020 Digests

Posted By Administration, Tuesday, May 26, 2020

Kansas Court of Appeals

criminal

APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS
STATE V. MABERRY
RENO DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART, REMANDED
No. 120,972—MAY 22, 2020

FACTS: May 2018 sentence imposed after Maberry pled guilty to aggravated escape from custody. In July correspondence with appellate court he discovered no appeal was pending in his criminal case. He filed August pro se motion to withdraw his guilty plea. District court summarily denied the motion three days later. In November letter to district court Maberry asked for status on his motion to withdraw, citing months-long delay with no ruling. In February 2019, he filed pro se motion to appeal out of time. District court summarily denied the motion, stating in part no rule required the court to separately advise Maberry of the right to appeal the denial of a motion to withdraw plea, and noting the amount of time between Maberry’s motion for leave to appeal out of time and his November awareness of the August ruling on the motion to withdraw his plea. Maberry appealed the district court’s denial of the motion to appeal out of time arguing due process entitled him to an out-of-time appeal because district court: (1) failed to notify him that it denied his motion to withdraw plea until after time to appeal had expired, and (2) failed to inform him of his appellate rights upon the denial of his motion withdraw plea.

ISSUES: (1) Due process—notice of denial of motion to withdraw plea; (2) due process—informing defendant of right to appeal and statutory time for filing an appeal.

HELD: Supreme Court Rule 134(a) provides that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party’s attorney—the court immediately must serve notice of the ruling.

To satisfy Due Process Clause in federal and Kansas constitutions, substantial compliance with this rule is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. Record in this case is insufficient to determine whether district court substantially complied with the requirement to serve Maberry with notice of the ruling denying the motion to withdraw plea. The lack of specific findings of fact on this important issue precludes meaningful appellate review. District court’s summary dismissal is vacated and case is remanded with directions to make findings regarding whether district court substantially complied with Supreme Court Rule 134(a).

            District court is affirmed on Maberry’s second issue. Maberry’s argument - that State v. Hemphill, 286 Kan. 583 (2008), wrongly held the judicial exceptions in State v. Ortiz, 230 Kan. 733 (1982), to an untimely appeal do not apply in context of a motion to withdraw plea - is rejected. Because a criminal defendant does not have a statutory right to be informed of right to appeal from a denial of a motion to withdraw plea, Due Process Clause of federal and Kansas constitutions do not require that district court inform the defendant of the right to appeal and the statutory time limit to appeal the denial of the motion.   

STATUTES: K.S.A. 2019 Supp. 22-3608, -3608(c); K.S.A. 2017 Supp. 21-5911(b)(1)(A); K.S.A. 22-3210(a)(2), -3424(f), -4505(a), 60-258, -1507

appeals—constitutional law—criminal law—criminal procedure—statutes
state v. mejia
johnson district court—reversed and remanded
No. 121,475—may 22, 2020

FACTS: Meijia charged in part with misdemeanor driving under influence (DUI), K.S.A. 8-1567, which the State raised to a felony based on Mejia’s three Missouri convictions for driving while impaired (DWI). Mejia challenged  the use of his Missouri convictions. Relying in part on State v. Wetrich, 307 Kan. 552 (2018), district court found the out-of-state convictions could not be used because the Missouri statute proscribed a broader range of conduct than K.S.A. 8-1567. District court also found comparison of the statutory elements of the Missouri offenses required consideration of facts underlying Mejia’s convictions, in violation of Apprendi and its application. District court refused to bind Mejia over on the felony charge and it granted State’s motion to dismiss without prejudice the remaining charges against Mejia. State appealed. Mejia argued the State’s appeal in this criminal case was improper.

ISSUES: (1) State’s appeal; (2)  K.S.A. 8-1567 and out-of-state convictions

HELD: State properly appealed the district court’s dismissal of the felony DUI charge. District court’s refusal to hold Mejia on that charge and its dismissal of the other charges brought the State within the scope of the statutory exception which allows State to appeal dismissal of the complaint. And State’s use of Mejia’s Missouri convictions as predicate offense under the Kansas statute does not rest on district court’s resolution of conflicting testimony or other disputed facts.

            State properly relied on Mejia’s three Missouri convictions to charge him with felony violation of K.S.A. 8-1567. District court’s reliance on Wetrich is misplaced. Legislature amended K.S.A. 8-1567 post-Wetrich to permit charging and sentencing enhancements for DUIs based on out-of-state convictions under statutes comparable to Kansas law—meaning “similar to” rather than the same or narrower than Kansas law. Chapters 8 and 21, and use of the term “comparable,” are compared and contrasted in light of legislative policy behind escalating punishment of recidivist drunk drivers. A conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 2019 8-1567 from a misdemeanor to a felony or to increase punishment of a recidivist, even though the other state’s statute proscribes a broader range of conduct. The two statutes need only be generally comparable as defined in K.S.A. 2019 Supp. 8-1567(j). The relevant Missouri statute in Mejia’s out-of-state convictions is similar to K.S.A. 8-1567, so these convictions support the felony charge. Reversed and remanded to reinstate the felony DUI charge.

DISSENT (Schroeder, J.): Would find Mejia’s prior Missouri DWI convictions cannot be used to enhance his charge to a felony DUI, and district court’s dismissal of the charge at the preliminary hearing was proper. Criticizes majority’s reasoning and resulting conclusion that the Wetrich line of cases is inapplicable to Kansas’ DUI law. Disagrees that the meaning of “comparable” in K.S.A. 2019 Supp. 8-1567(i)(3) is ambiguous on its face, thus there was no need for majority’s examination of legislative intent. Majority also ignores holding in State v. Gensler, 308 Kan. 674 (2017). Believes the identical to or narrower than approach must be followed to avoid running afoul of Apprendi and its progeny.

STATUTES: K.S.A. 2019 Supp. 8-1485,  -1567, -1567(a), -1567(a)(1), 1567(a)(2), -1567(a)(3), -1567(b), -1567(b)(1)(A)-(E), -1567(i), -1567(i)(1), -1567(i)(2), -1567(i)(3), -(i)(3)(B), -1567(j), -1567(j)(1), 1567(i)(2), -1567(i)(3), 21-6801 et seq., -6811(e)(3), 22-3602(b)(1); K.S.A. 2018 Supp. 8-262, -1567, 1568; K.S.A. 2017 Supp. 8-1567(i)(1), 21-6811(e)(2)(A), -6811(e)(3); K.S.A. 8-1567, -1567(a), -1567(i), 1567(i)(3), -1567(j), 32-1102(a), -1131

Tags:  appeals  Apprendi  constitutional law  criminal law  criminal procedure  Hemphill  Johnson District Court  motions  Ortiz  Reno District Court  statutes  Wetrich 

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May 15, 2020 Digests

Posted By Administration, Monday, May 18, 2020

Kansas Supreme Court

 

CRIMINAL 

 

CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. MORRIS

SEDGWICK DISTRICT COURT—AFFIRMED

NO. 119,911—MAY 15, 2020

 

FACTS: Jury convicted Morris of charges including both first-degree premeditated murder and alternative charge of first-degree felony murder, aggravated kidnapping, and aggravated battery. On appeal, he claimed district court erred in refusing to give a requested instruction on  voluntary intoxication, and in admitting gruesome photographs of victim’s partially decomposed body that had been exposed to damage from animals. Morris also claimed cumulative error denied him a fair trial.

 

ISSUES: (1) Jury instructions—voluntary intoxication; (2) gruesome photographs; (3) cumulative error

 

HELD: District court did not err in denying Morris’ request for a voluntary intoxication instruction. While the requested instruction would have been a legally available defense to Morris’ first-degree murder charge and conviction, such an instruction was factually inappropriate because insufficient evidence supported that defense in this case.

            District court did not abuse its discretion in admitting photographs of victim’s body. Because Morrisargument clearly fails on the merits, no need to determine State’s argument that Morris failed to properly preserve this issue by failing to lodge a specific objection to the 12 photographs admitted. A few of the admitted photographs may have been repetitive, and many may have been gruesome, but they were relevant and admissible to show the manner and violent nature of victim’s death and to corroborate testimonies of witnesses having credibility issues.   

            No error supports Morris’ claim of cumulative error, and evidence against Morris was overwhelming.

 

STATUTES: K.S.A. 2016 Supp. 21-5205(b), -5408, -5413; K.S.A. 60-401(b), -404, -445

 

 

Kansas Court of Appeals

 

CIVIL

 

ATTORNEY FEES—JURY TRIAL—REMEDY
HARDER V. ESTATE OF FOSTER
LEAVENWORTH DISTRICT COURT—AFFIRMED AND REMANDED
NO. 118,845—MAY 15, 2020

 

FACTS: The case arises out of a real estate dispute between Evelyn Harder and Ronald Foster. In 2013, a jury found Foster guilty of negligent misrepresentation, intentional misrepresentation, and breach of contract. The real estate contract included a provision which required a party who breached the contract to pay attorney fees that the nonbreaching party incurred in connection with the default. The district court awarded Harder fees for the initial litigation but denied her motion for fees incurred while attempting to finalize the decision and journal entry. After this trial, Harder filed a second suit against Foster and his children, claiming that Foster fraudulently transferred all proceeds from the property sale to his family members, leaving him unable to pay Harder's judgment. Foster died during this litigation. His estate paid the judgment in full and the district court dismissed the action on summary judgment, finding that the payment extinguished any of Harder's claims. Harder's motion for attorney fees and costs was denied. These decisions were upheld on appeal except the panel determined the district court erred by denying Harder's motions for attorney fees and expenses in the 2013 case. The panel remanded the 2015 case to allow the district court to determine whether Harder could prove an exception to the American rule which requires parties to bear their own litigation costs unless a statute or contract expressly authorizes such an award. The district court's factfinding was limited to Harder's third-party claims. On remand, Harder claimed that she had a right to have a jury decide attorney fees and expenses for both the 2013 and 2015 cases. The district court disagreed, and the Court of Appeals granted Harder's application for an interlocutory appeal.

 

ISSUES: (1) Jury trial for attorney fees; (2) fees for 2013 case; (3) fees for 2015 case

 

HELD: The right to a jury trial in a civil action is not absolute. It is only guaranteed if such a right existed at common law at the time the Kansas constitution was adopted in 1859. There was no right to recover attorney fees at common law, and Kansas follows the American rule where fees are not awarded unless there is a statute or contractual provision so requiring. Kansas does recognize the third-party litigation exception to the American rule, but that exception did not exist in 1859. Accordingly, there is no right under the Kansas constitution to have a jury determine attorney fees and expenses. The 2013 judgment has been satisfied in full. Harder voluntarily chose not to present her attorney fees claim to the jury; her attorney expressly asked the trial court to resolve the matter, arguing in a pleading that the question of fees and expenses arising out of the real estate contract was not a jury decision. The error Harder now claims was invited by her counsel before the district court, and she is not entitled to relief. The prior decision on the 2015 case is upheld. Harder is not entitled to have a jury decide whether an exception to the American rule exists which would allow her to recover attorney fees for third-party conduct.

Tags:  attorney fees  criminal procedure  evidence  jury instructions  jury trial  Leavenworth District Court  remedy  Sedgwick District Court 

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May 1, 2020 Digests

Posted By Administration, Monday, May 4, 2020

Kansas Supreme Court

criminal

constitutional law—criminal law—criminal procedure—due process—jury instructions
state v. craig
geary district court—affirmed
No. 119,660—may 1, 2020

FACTS: Craig was charged with first-degree murder under theories of premeditated murder and felony murder, conspiracy to commit first-degree premeditated murder, aggravated robbery, conspiracy to commit aggravated robbery, and criminal possession of firearm by a convicted felon. After district court instructed jury on felony murder, premeditated murder, and intentional second-degree murder as a lesser included offense of premeditated murder, jury found Craig guilty of both first-degree felony murder and second-degree intentional murder. Craig filed motion for new trial because jury convicted him of two murder offenses for the same killing. District court denied the motion and instead sentenced Craig on the more serious felony murder. Craig appealed claiming the two murder convictions for the same killing violated his due process rights, and after jury was discharged the two guilty findings were legally irreconcilable. He also claimed the district court should have instructed jury on voluntary intoxication given evidence of Craig’s use of alcohol and marijuana and unclear communication shortly before the shooting;

ISSUES: (1) Two murder convictions for the same killing; (2) voluntary intoxication instruction

HELD: District court’s jury instructions in this case are examined, finding them to be legally correct. Craig failed to show that his first-degree murder sentence was imposed in violation of due process right to have jury find each element of the offense beyond a reasonable doubt, or that jury’ first- and second-degree murder verdicts were so irreconcilable as to require a new trial. Irreconcilable verdicts in State v. Hernandez, 294 Kan. 200 (2012), are distinguished. District court properly sentenced Craig on the first-degree felony-murder conviction.

            Question of whether conspiracy to commit a robbery is a specific intent crime, making a voluntary intoxication instruction legally appropriate, remains unresolved in this case because such an instruction was not factually appropriate. Evidence about Craig’s state of mind does not establish any impairment that deprived him of the ability to form the requisite mens rea; no evidence of any memory loss or inability to recall events before or during commission of the crimes; and Craig never relied on voluntary intoxication in defending himself.

STATUTES: K.S.A. 2019 Supp. 21-5109(b)(1), -5402(a)(2), -5402(d), -5403(a)(1), 22-3414(3), -3601(b), -5205(b); K.S.A. 22-3421, 60-2101(b)

constitutional law—criminal procedure—evidence—Fifth Amendment—motions
state v. lemmie
Saline district court—affirmed
No. 119,439—may 1, 2020

FACTS: For shooting and killing a victim during a robbery, jury convicted Lemmie of first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. In pretrial motion to suppress evidence obtained and derived from his phones, Lemmie alleged a detective obtained the phone passcodes in violation of his Fifth Amendment right against self-incrimination. District court denied that motion, finding disclosure of the passcodes was not compelled and the codes were not testimonial. Lemmie appealed, claiming: (1) the detective’s testimony about Lemmie giving her the phone passcodes violated his constitutional right against self-incrimination; (2) district court erred by admitting two statements made by a coconspirator after Lemmie shot the victim, and by asking State if the contemporaneous statement hearsay exception applied; (3) insufficient evidence supported his first-degree murder conviction; (4) district court erred by admitting K.S.A. 60-455 testimony that Lemmie was upset over a missing methamphetamine pipe.

ISSUES: (1) Fifth Amendment—testimonial status of passcodes and passwords; (2) hearsay evidence; (3) sufficiency of the evidence, (4) K.S.A. 60-455 evidence, (5) cumulative error

HELD: Kansas Supreme Court has not yet addressed the “rich and rapidly developing area of the law” of the testimonial status of passcodes and passwords, and does not do so in this case. Any possible constitutional error arising from district court’s refusal to suppress evidence that a detective obtained phone passcodes from Lemmie was harmless. No incriminating evidence from the phones was introduced at trial.:

            District court did not err in admitting the coconspirator’s two statements. Even assuming the statements qualified as hearsay, they were admissible as statements of a coconspirator, K.S.A. 60-460(i)(2), one of the grounds on which the district court judge relied. A district judge admitting evidence on two grounds, including one originating with the court, when the one already advanced by a party would suffice is not judicial misconduct.

            State provided more than ample evidence to convict Lemmie of first-degree murder.

            No abuse of district court’s discretion arising from admission of K.S.A. 2019 Supp. 60-455 evidence of Lemmie being upset over a missing methamphetamine pipe. No error in district court’s conclusion that the missing methamphetamine pipe was relevant to motive.

            Cumulative error doctrine does not apply where there is only one assumed nonreversible error with respect to passcode testimony.          

STATUTES: K.S.A. 2019 Supp. 60-455, -455(a), -455(b); K.S.A. 60-404, -455, -460)d), -460(d)(1), -460(d)(2), -460(i)(2)

criminal law—criminal procedure—evidence—jury instructions—sentencing
state v randle
sedgwick district court—affirmed
no. 119,720—may 1, 2020

FACTS: Randle and two others fired shots into apartment, killing a victim inside. Randle was convicted of first-degree murder and criminal discharge of firearm. He requested a dispositional/durational departure sentence, listing four mitigating factors; sentencing court denied the request, finding no substantial and compelling bases for departure. On appeal Randle claimed district court erred by: (1) refusing Randle’s request for jury instruction on unintentional but reckless second-degree murder as a lesser included offense of first-degree murder; (2) allowing hearsay statements into evidence; (3) admitting gruesome and unnecessary photographs and crime scene video into evidence; and (4) refusing to grant Randle’s motion for a departure sentence.

ISSUES: (1) Jury instruction—lesser included offense; (2) alleged hearsay evidence; (3) photographic and video evidence; (4) sentencing—mitigating factors

HELD: Misstatement in State v. Fisher, 304 Kan. 242 (2016), for analyzing jury instruction claims is identified and disapproved. Under Kansas caselaw, when a defendant requests a lesser included offense instruction, an appellate court reviews the evidence in the light most favorable to the defendant. Randle’s requested instruction was legally appropriate, but even assuming the instruction was factually appropriate, the error was harmless. Overwhelming evidence supports the first-degree premeditated murder conviction. And jury, provided with choice between first-degree premeditated murder and second-degree intentional murder, convicted Randle of the more severe crime that required a premeditation finding.

            District court did not err by admitting the two out-of-court statements. Alleged hearsay statements are examined, finding one was not hearsay. The other was classic hearsay, but allowed because the statement was made by a person present at trial and available for cross-examination, K.S.A. 2019 Supp. 60-460(a).

            No error in admitting eight of the 128 autopsy photos, selected to explain the nature and extent of fatal injuries, their location on the body, and coroner’s opinions based on injuries depicted. No error in admitting the six-minute crime scene video. Similar argument, that a crime scene video was irrelevant, cumulative, and more prejudicial than probative, was rejected in State v. McCaslin, 291 Kan. 697 (2011). No error in admitting two photographs of Randle while in custody, in street clothes, and without handcuffs or other restraints. Randle did not challenge relevancy, and this evidence was not unduly prejudicial.

            Randle’s reliance on previous cases holding his listed mitigating factors to be substantial and compelling reasons to support a departure sentence is rejected. Mitigating factors that may justify departure in one case may not justify a departure in another case.

STATUTES: K.S.A. 2019 Supp. 21-6620,: -6815(a), 22-3601(b), 60-459(a), -460, -460(a), -460(i)(2); K.S.A. 60-404, -2101(b)

 

Kansas Court of Appeals

Civil

SEXUALLY VIOLENT PREDATOR
IN RE CARE AND TREATMENT OF RITCHIE
BARTON DISTRICT COURT—AFFIRMED
NO. 121,627—MAY 1, 2020

FACTS: Ritchie was civilly committed to the Larned State Hospital under the Kansas Sexually Violent Predator Act. By April 2017, Ritchie earned the right to transitional release. He remained in the transitional release program until February 2019, which he was removed from the program and returned to Larned State Hospital. The removal was prompted by concerns about Ritchie's behavior and staff's belief that he was a danger to the general public; Ritchie violated the rules of transitional release in many ways, including several occasions where he contacted his victims. The State scheduled Ritchie's probable cause hearing but had to delay it because of scheduling conflicts for counsel and witnesses. Ritchie moved to dismiss the motion to revoke transitional release, arguing that the two-day timeframe for the probable cause hearing was jurisdictional.

ISSUES: (1) Is the statutory requirement that a hearing be held within two working days jurisdictional; (2) whether Ritchie was entitled to return to transitional release

HELD: As with most time standards of the KSVPA, the "two working days" requirement of K.S.A. 59-29a08(k) is directory, not mandatory. Any delay beyond the two days did not violate Ritchie's constitutional rights. He was still heard in a meaningful time and manner. There was sufficient evidence that Ritchie violated the terms of his conditional release placement, justifying his return to confinement at Larned.

STATUTE: K.S.A. 2019 Supp. 59-29a01, -29a01(b), -29a08(j), -29a08(k), -29a10

Tags:  Constitutional law  criminal law  criminal procedure  due process  evidence  Fifth Amendment  jury instructions  motions  sentencing 

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April 24, 2020 Digests

Posted By Administration, Monday, April 27, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—immunities—statutes
state v. collins
sedgwick district court—reversed and remanded; court of appeals—affirmed
no. 117,743—April 24, 2020

FACTS: Wielding a knife in an altercation with three unarmed women, Collins killed one and injured a second. Collins filed motion to dismiss the complaint, claiming self-defense immunity. District court granted the motion and dismissed charges of second-degree murder and reckless aggravated battery, ruling Collins had reasonable grounds to believe he was in danger of great bodily harm. Court of Appeals reversed and remanded for further proceedings. 56 Kan. App. 2d 140 (2018).  Collins’ petition for review granted. Review also granted on State’s conditional cross-petition for review of panel’s failure to decide whether State met its probable cause burden to demonstrate Collins was the aggressor at the time of the fatal stabbing and initially provoked the use of force. Review granted on Collins’ petition and State’s conditional cross-petition.

ISSUE: Self-defense immunity

HELD: Collins is not entitled to self-defense immunity from prosecution. Relevant statutes examined—K.S.A. 2019 Supp. 21-5231 (self-defense immunity statute and State’s burden to show probable cause the defendant’s use of force was not statutorily justified), K.S.A. 2019 Supp. 21-5222 (statutory justification for use of force), and K.S.A. 2019 Supp. 21-5226 (grounds making self-defense justification unavailable). Another case examining these statutes, State v. Thomas, 311 Kan. __  (this day decided), is cited. On facts found by district court, there is probable cause to believe Collins’ use of force was not statutorily justified. The escalating sequences of events comprising the deadly encounter are broken down into four discrete uses of force and examined. The initial aggressor statute, K.S.A. 2019 Supp. 21-5226, operates conclusively to deny Collins’ immunity motion and district court is reversed on that basis. District relied on its accurate finding of no evidence that Collins was escaping from a felony, but failed to consider other disqualifying conduct in 21-5226(a)—that Collins was attempting to commit, or committing a forcible felony. State supplied probable cause to believe Collins’ killing and wounding of the victims were not justifiable acts of self-defense under the Kansas statutory scheme. State’s prosecution of Collins should have been permitted to continue.  

STATUTES: K.S.A. 2019 Supp. 21-5111(n), -5221, -5221(a)(1)(A), -5222, -5222(b), -5226, -5226(a), -5226(b), -5226(c), -5226(c)(1), -5226(c)(2), -5231, -5231(a) -5231(c), -5403(a)(1), -5412(a); K.S.A. 2015 Supp. 21-5413(b)(2)(B)

appeals—criminal procedure—motions
state v. espinoza
wyandotte district court—affirmed
no. 118,737—april 24, 2020

FACTS: Espinoza pleaded guilty to first-degree felony murder. In pre-sentence motion he sought a durational departure claiming the mandated hard-25 sentence was unconstitutional as applied. He argued the three-pronged proportionality test in State v. Freeman 223 Kan. 362 (1978), required district court to assess specific facts of his case to determine constitutionality of his sentence under § 9 of Kansas Constitutional Bill of Rights, and listed facts he believed weighed in favor of granting a durational departure. District court denied the challenge. Espinosa challenged that decision on direct appeal, arguing the district court failed to make such findings, and seeking remand to develop the necessary factual record.

ISSUE: Appellate review of constitutional claim

HELD: It is a defendant’s responsibility to ensure the district court makes the factual findings necessary for appellate review, and this responsibility goes beyond merely raising a constitutional claim. Here, Espinoza did not object to district court’s failure to make factual findings at sentence, and he did not file a motion under Kansas Supreme Court Rule 165. Espinoza’s as-applied challenge to the constitutionality of his hard-25 sentence is not amenable to appellate review.  

appeals—criminal procedure—immunities—statutes
state v. Thomas
barton district court—reversed and remanded; court of appeals—affirmed
no. 116,111—April 24, 2020

FACTS:  State charged Thomas with first-degree murder for shooting and killing an unarmed man outside that man’s residence. Thomas filed pretrial motion to dismiss based on self-defense immunity under K.S.A. 2019 Supp. 21-5231. State argued Thomas did not qualify for statutory immunity because his use of deadly force was not justified under K.S.A. 2019 Supp. 5222, and because Thomas was the initial aggressor under K.S.A. 2019 Supp. 21-5226. Making no distinct factual findings, district court dismissed the complaint, cited the investigating officer’s testimony that Thomas was justified in drawing his weapon, and held the State did not meet its burden to show probable cause the self-defense immunity did not apply. State appealed. Court of Appeals reversed in unpublished opinion, finding the district court failed to make sufficient findings of fact and conclusions of law, and remanded case for another evidentiary hearing in compliance with Supreme Court Rule 165. Thomas’ petition for review granted.

ISSUE: Self-defense immunity

HELD: Panel’s judgment is affirmed. District court’s role in deciding complex immunity claims before trial is discussed, and relevant statutes are examined - K.S.A. 2019 Supp. 21-5231 (self -defense immunity statute and State’s burden to show probable cause the defendant’s use of force was not statutorily justified), K.S.A. 2019 Supp. 21-5222 (statutory justification for use of force), and K.S.A. 2019 Supp. 21-5226 (grounds making self-defense justification unavailable). Another case examining these statutes, State v. Collins, 311 Kan. __  (this day decided), is cited. Under State v. Hardy, 305 Kan. 1001 (2017), district court’s fleeting explanation of its conclusions in this case, without first adequately addressing contradictory testimony, was error and specific examples are identified. Also, Thomas did not directly challenge the panel’s additional direction that a new evidentiary hearing is necessary before making the required findings of fact and conclusions of law. District court’s judgment is reversed and case is remanded with directions.

STATUTE: K.S.A. 2019 Supp. 21-5221(a), -5221(a)(1)(B), -5221(a)(2), -5222, -5222(b), -5226, -5226(b), -5226(c), -5231, -5402(a)(1)

Tags:  appeals  Barton District Court  criminal procedure  immunities  motions  Sedgwick District Court  statutes  Wyandotte District Court 

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April 17, 2020 Digests

Posted By Administration, Monday, April 20, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—evidence—jury instructions—sentences
state v. broxton
wyandotte district court—reversed and remanded
court of appeals—affirmed in part and reversed in part
no. 114,675—april 17, 2020

FACTS: Broxton convicted of second-degree murder, burglary, and felony theft. During trial, State introduced identity evidence of Broxton’s arrest in a 1996 Florida homicide case that closely mirrored the homicide in this case. District court denied Broxton’s request to admit evidence of a “No Information” document executed by the Florida prosecutor that indicated Florida lacked sufficient evidence to charge Broxton. District court found the document lacked probative value because it did not decisively state Broxton was innocent of that crime. District court also denied Broxton’s request for a felony-murder instruction, finding the instruction was legally inappropriate because State only charged Broxton with first-degree premeditated murder and felony murder. is not a lesser included offense. Broxton appealed claiming district court erred by: (1) failing to give a felony-murder instruction; (2) excluding from evidence the Florida homicide investigation document; and (3) improperly scoring Broxton’s prior Florida burglary conviction as person felony. Court of Appeals affirmed in unpublished opinion.

            As to the felony-murder instruction claim, panel found such an instruction was not factually appropriate in this case, and relying on State v. Young, 277 Kan. 588 (2004), explained that district court may instruct for felony murder even though the State only charged premeditated first-degree murder but was under no duty to do so. Broxton petitioned for review of panel’s decision that a felony-murder instruction was not factually appropriate. State cross-petitioned panel’s holding that a felony-murder instruction was legally appropriate.

            As to the exclusion of evidence claim, panel found the No Information document was relevant, but district court’s error in excluding this evidence was harmless. On appeal, Broxton challenged the panel’s harmlessness conclusion; State challenged panel’s finding of error.

            As to the scoring of Broxton’s prior Florida burglary conviction, a claim raised for first time on appeal, Broxton cites the change of law in State v. Wetrich, 307 Kan. 552 (2018).

            Review granted on Broxton’s petition and the State’s cross-petition.

ISSUES: (1) Jury instruction—uncharged crime; (2) admission of “no information” evidence

HELD: District court did not err in refusing to give a felony-murder jury instruction. Young predates the more precise framework for analyzing jury instructions adopted in State v. Plummer, 295 Kan. 156 (2012), and misstep in Young is apparent when viewed in light of Plummer. Because State did not charge Broxton with felony murder—and felony murder is not a lesser included offense of any crime Broxton was charged with—a felony-murder instruction was not legally appropriate in this case. No need to consider if the instruction would have been factually appropriate.

            District court erred by excluding the Florida “No Information” document from evidence, but any prejudice resulting from this exclusion was harmless in light of the entire record.

            The 1989 Florida burglary conviction must be scored as a nonperson felony. The Florida burglary statue prohibits a broader range of conduct than the Kansas statute, thus these are not comparable offenses. Under State v. Williams,  311 Kan. __ (2020), the change of law in Wetrich did not make Broxton’s sentence illegal, but did render it erroneous. Broxton must be resentenced correctly with his Florida burglary conviction scored as a nonperson felony. Sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 60-261, -455; K.S.A. 21-6810(d), -6811(c), -6811(j), 60-455

appeals—constitutional law—criminal law—sentences—statutes
state v. Corbin
saline district court—affirmed
no. 119,665—April 17, 2020

FACTS: Corbin entered no contest plea to first-degree premeditated murder. At sentencing he argued he was a person with an intellectual disability who was not subject to a mandatory minimum prison term by operation of K.S.A. 2019 Supp. 21-6622(b). District court disagreed and imposed a hard-25 life sentence. While Corbin’s appeal was pending, the legislature amended the statute to add other ways to establish the “significantly sub-average general intellectual functioning” standard. Kansas Supreme Court reversed and remanded for district court to reconsider Corbin’s motion using the new legislative criteria for determining intellectual disability. State v. Corbin, 305 Kan. 619 (2016). On remand, Corbin was allowed to present additional information. District court resentenced him to the original mandatory term, again finding Corbin was not a person with intellectual disability and. Corbin appealed.

ISSUE: Intellectual disability

HELD: District court did not abuse its discretion when it rejected Corbin’s motion and imposed a mandatory term of imprisonment. District court’s decision is reviewed as a “reason to believe” determination under K.S.A. 2019 Supp. 21-6622(b). Implications of extending State v. Thurber, 308 Kan. 140 (2018), outside the death penalty context are not argued or considered. 

STATUTES: K.S.A. 2019 Supp. 21-6622, -6622(b), 6622(h), 22-3601(b); K.S.A. 2015 Supp. 76-12b01(i); K.S.A. 60-2101(b), 76-12b01(i)

contracts—criminal procedure—evidence
state v. frazier
geary district court—reversed and remanded—court of appeals - reversed
no. 117,456—April 17, 2020

FACTS: Officers stopped car driven by Gould with passenger Frazier. Heroin was found, which led to search warrant in Ohio and discovery of drug evidence there. In Kansas, Frazier and Gould entered pleas pursuant to plea agreements that stated Ohio authorities agreed to dismiss and/or not file any charges resulting out of search warrant obtained as a result of the Kansas arrest. Prior to sentencing Frazier filed motion to withdraw plea, citing his discovery that an Ohio prosecutor had signed Gould’s agreement but not Frazier’s. District court denied the motion, finding the plea was fairly made and Frazier fully understood the consequences of his plea. Applying factors in State v. Edgar, 281 Kan. 30 (2006), Court of Appeals affirmed in unpublished opinion. Panel emphasized Frazier’s awareness that his attorney had not spoken with Ohio authorities, and they had not signed off on his plea agreement, and concluded Frazier was not misled or coerced about possibility of being charged in Ohio. Frazier petitioned for review, arguing district court abused its discretion because there were misleading or false statements contained in the plea agreement.

ISSUE: Withdrawal of plea—plea agreement  

HELD: Fundamental problem not addressed below is that Frazier was relying on a promise of conduct not made by a party to the plea agreement. Under basic principle of contract law, prosecutor and defense counsel presented Frazier with a contract that could be legally unenforceable against any Ohio prosecutor. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. No dispute in this case that the certainty of the lack of prosecution in Ohio was a significant factor in Frazier’s decision to enter into the plea agreement. District court’s decision finding no good cause for withdrawal of Frazier’s plea was based on errors of fact and law. Reversed and remanded to district court for Frazier to be permitted to withdraw his plea.    

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

appeals—constitutional law—criminal procedure
state v. harris
atchison district court—reversed and remanded; court of appeals—reversed
no. 117,362—april 17, 2020

FACTS: Harris was convicted in bench trial of felonious possession of marijuana. He appealed on four issues, claiming in part for first time that he did not properly waive his right to jury trial. Court of Appeals affirmed, 55 Kan.App.2d 579 (2018). Review granted on all issues.

ISSUE: Waiver of right to jury trial

HELD: Court addresses merits of the jury trial claim to prevent denial of fundamental right.  District court failed to properly apprise Harris of right to a jury trial and failed to ensure Harris understood the nature of the right he was waiving. Once Harris expressed his preference, district court simply accepted that Harris wanted the court to decide the matter and moved on without taking any steps to ensure Harris understood the right he was giving up. District court and Court of Appeals decisions are reversed. Case remanded to district court so Harris can be informed of right to a jury trial—and either exercise that right or properly waive it. Remaining issues in the appeal are not addressed.

STATUTES: None

CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. UK

LYON DISTRICT COURT—AFFIRMED
NO. 119,712—APRIL 17, 2020

FACTS: UK charged and convicted of first-degree premeditated murder. Based on evidence he had quarreled with victim, UK requested a voluntary manslaughter instruction as a lesser included offense. District court denied that request, finding no evidence of legally sufficient provocation. On appeal, UK claimed district court erred in not giving the jury the requested instruction, arguing district court improperly evaluated the degree of the quarrel as opposed to its existence, and further argued Kansas caselaw has erroneously conflated the separate statutory elements of “sudden quarrel” with “heat of passion.” UK also claimed for first time on appeal that district court erred in giving jury an unmodified PIK instruction that did not sufficiently define “premeditation.”

ISSUES: (1)  Jury instruction—voluntary manslaughter; (2) jury instruction—premeditation

HELD: UK’s request for a voluntary manslaughter instruction was legally appropriate but not factually appropriate. The mere existence of a “sudden quarrel” immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. In this case, no error in district court’s limited gatekeeping determination that evidence did not constitute legally sufficient provocation. And UK’s conflation-of-statutory-elements argument essentially asks the court to overturn precedent dating back to State v. Coop,  223 Kan. 302 (1978), which the court declines to do.

            District court did not err in defining premeditation for the jury. Though the PIK instruction used both “intent” and “intentional” within two sentences, in context the meanings    of those two words leave no doubt that “premeditation”—as a thought process conducted some time before an act—is clearly different than the intentional nature of the act itself.              

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5402(a)(1), -5404

 

Kansas Court of Appeals

Civil

ACQUIESCENCE—CHILD SUPPORT—JURISDICTION
IN RE HENSON
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 120,543—APRIL 17, 2020

FACTS: Chris and Gina Henson divorced in 1991. Gina was awarded primary custody of the couple's children; Chris was ordered to pay child support and half of the children's medical expenses. Several years after the divorce, Chris moved to California while Gina remained in Kansas. In 1994, Gina attempted to enforce Chris's child support obligations, a case was opened in California, and Chris began paying child support under an income withholding order. A few years later, the district court trustee asked the California court to increase the child support amount and require payment for medical bills and insurance. The California court significantly increased Chris's child support obligation and asked that additional funds be paid towards the arrearage. In 2002, Chris moved to Colorado. The court trustee registered the California judgment and Chris's employer began withholding income. Gina moved to determine an arrearage, and after Chris did not appear the district court issued a default judgment, basing the arrearage amount on the California judgment. Chris eventually moved to set aside the default judgment on grounds that the California judgment was void. That motion was denied, and the district court renewed its holding that the California judgment remains in effect and that any calculation of Chris's arrearage should be based off that judgment. Chris appealed

ISSUES: (1) Jurisdiction of California court; (2) validity of default judgment; (3) request for setoff; (4) income withholding order; (5) attorney fees

HELD: Chris's challenge about the validity of the California judgment involves a challenge to subject matter jurisdiction. As such, it may be raised at any time. Similarly, there is no time limit on a challenge to a void judgment. Chris did not acquiesce in the California judgment by paying child support under it; paying a void judgment cannot amount to acquiescence. When the district court modified Chris's child support obligation, the Uniform Reciprocal Enforcement of Support Act was in effect in California but not in Kansas. The Full Faith in Credit for Child Support Orders Act accounts for this, requiring each state to recognize ongoing child support obligations from other states and giving them power to modify child support obligations only under limited circumstances. The FFCCSOA preempts URESA with respect to child support modification in an URESA enforcement action. Under the FFCCSOA, only Kansas had jurisdiction to modify Chris's child support obligation. California's child support modification order is void and cannot be used as a basis for default judgment or to determine arrearages. The district court did not make adequate findings of fact to allow for a review of whether Chris is entitled to an equitable setoff for amounts he overpaid under the void California judgment. That fact-finding must be done on remand. The district court was required to issue an income withholding order after it determined the amount of Chris's arrearage. But because the order is based on the void California judgment, the withholding order is no longer legally enforceable. On remand, the district court must determine the appropriateness of enforcing any future income withholding order. The district court did not abuse its discretion by awarding Gina attorney fees for representation undertaken in district court. But Gina is not awarded attorney fees on appeal because the application for fees did not comply with Supreme Court Rule 7.07(b)(2).

STATUTES: 23 U.S.C. §1738B; K.S.A. 2019 Supp. 23-2715, -3103(a), -36,202, -36,205, -36,205(c), -36,313, 60-260(b)(4), -260(b)(5), -260(c); K.S.A. 23-451, -9,101, -3106(a)

Tags:  acquiescence  Appeals  child support  Constitutional law  contracts  criminal law  criminal procedure  evidence  jurisdiction  jury instructions  sentences  statutes 

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April 10, 2020 Digests

Posted By Administration, Monday, April 13, 2020

Kansas Supreme Court

Civil

EMERGENCY PROCEDURES—QUO WARRANTO
KELLY V. LEGISLATIVE COORDINATING COUNCIL
ORIGINAL ACTION—QUO WARRANTO GRANTED IN PART
NO. 122,765—APRIL 11, 2020

FACTS: Because of the global pandemic caused by the novel coronavirus, Governor Kelly issued an emergency proclamation and follow-up executive orders. Under statute, the state of disaster emergency could not last longer than 15 days unless ratified by a concurrent resolution of the Legislature. Within that 15-day window, the legislature adopted House Concurrent Resolution 5025, extending the Governor's declaration to May 1, 2020. Governor Kelly used her emergency powers to issue Executive Order 20-18 which temporarily prohibited "mass gatherings", defined as any event that would bring together more than 10 people in an enclosed space. Importantly, Executive Order 20-18 removed religious gatherings from a list of exempted activities. Acting under HCR 5025, the Legislative Coordinating Council convened, voted, and revoked Executive Order 20-18. Governor Kelly filed this original action in quo warranto, and expedited proceedings were allowed given the unusual circumstances.

ISSUE: (1) Authority of the LCC

HELD: Quo warranto is an appropriate procedure for questioning the LCC's authority to revoke Executive Order 20-18. The House of Representatives and the Senate are not appropriate parties to the action and are dismissed. But the governor has standing to pursue this action. HCR 5025 establishes a conditions precedent which must be met before the LCC can act if the Legislature is not in session, including input from the State Finance Council. The LCC cannot act until the State Finance Council acts. K.S.A. 46-1202 is a general statute which creates the LCC and gives it some authority. In this instance, that statute must give way to the more specific statute, which governs the revocation of executive orders during an emergency.

CONCURRENCE: (Biles, J.) While agreeing with both the outcome and rationale, Justice Biles questions whether HCR 5025 can confer oversight powers on the LCC at all.

CONCURRENCE: (Stegall, J.) The majority reached the right outcome using the right rationale. There are lingering issues with the Kansas Emergency Management Act relating to separation of powers. The plain language of HCR 5025 may produce absurd results, but the court has no authority to rewrite the resolution.

STATUTES: K.S.A. 2019 Supp. 48-925 -925(b); K.S.A. 46-1202, 48-924, -924(b), 60-1203

criminal 

criminal procedure—sentences—statutes
state v. coleman
saline district court—reversed and remanded 
court of appeals—affirmed
no. 118,673—april 10, 2020

FACTS: In 2013, 2014, and 2015 cases, Coleman granted downward dispositional departure sentences of probation with underlying prison terms. In November 2017 revocation hearing, district court ruled that because probation had been granted as the result of dispositional departures it had authority under K.S.A. 2017 Supp. 22-3716(c)(9)(B), effective July 1, 2017, to revoke probation and impose the underlying sentences without first imposing intermediate sanctions. Coleman appealed. In unpublished opinion, Court of Appeals reversed and remanded, holding the trial court erred in applying K.S.A. 2017 Supp. 22-3716(c)(9)(B) retrospectively. State’s petition for review granted.

ISSUE: Probation revocation

HELD: Court of Appeals judgment is affirmed. The K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer’s probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after that statute’s effective date.  District court judgment is reversed and case remanded with directions.

STATUTES: K.S.A. 2017 Supp. 22-3716, -3716(c)(9)(B); K.S.A. 2014 Supp. 22-3716(c)(11); K.S.A. 20-3018(b), 60-2101(b)

 

Kansas Court of Appeals

Civil

CONTRACTS—EMPLOYMENT
HEFNER V DEUTSCHER
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,201—APRIL 10, 2020

FACTS: Hefner, Deutscher, and Rottinghaus worked together in their optometry practice as a corporation. As an employee of the corporation, Hefner signed a noncompete agreement barring him from employment within a set geographic area for three years following his employment with the corporation. The contract specified that damages would be awarded for any breach or "threatened breach" of the contract. Over time, Hefner and Deutscher's relationship soured, and both parties proposed strategies that would allow Hefner to leave the corporation. Before the details could be finalized, Hefner located new office space and registered a new tradename with the Kansas Optometry Board. Hefner ultimately resigned instead of finalizing his exit agreement. And instead of practicing, Hefner decided he would rather teach optometry. It was thought that Hefner would work for the corporation for an additional six months, but Deutscher fired him for violating the noncompete clause. Hefner filed suit for breach of contract and wrongful termination. All parties filed competing motions for summary judgment. The district court granted Hefner's motion for partial summary judgment on his breach of contract claim and granted the corporation's motion for summary judgment on Hefner's wrongful termination claim. After a bench trial on the remaining breach of fiduciary duty claim, the district court found that Deutscher and Rottinghaus breached their fiduciary duty to Hefner because their motives for terminating Hefner were not made in fairness and good faith to the corporation. The district court awarded Hefner in excess of $1 million in damages. The corporation, Deutscher, and Rottinghaus appealed.

ISSUE: (1) Hefner's breach of contract claim

HELD: The use of the phrase "threatened breach" in Hefner's employment contract did not mean the same thing as an anticipatory breach. It had a broader meaning under the plain language of the employment contract, and encompassed actions which would lead a reasonable person to believe that a breach is imminent and likely to happen. The district court incorrectly defined "threatened breach", and this error resulted in the district court wrongly granting Hefner's motion for summary judgment. This case must be remanded to the district court for further action.

STATUTES: No statutes cited.

RATEMAKING—UTILITIES
HANSON V. KCC
STEVENS DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, REMANDED TO KCC
NO. 119,834—APRIL 10, 2020

FACTS: TKO Gas, LLC provides limited natural gas service in Kansas, operating as a middleman to resell gas to customers. TKO assumed contract rights from a previous provider and never went through a formal rate-setting process. Over time, some customers complained that TKO improperly calculated the heat content of the gas it was selling, resulting in a consistent 9.5% overcharge. Staff found that TKO changed the pressure at which is delivered natural gas. TKO acknowledged that this happened, but claimed it was industry standard practice to do so, and that the practice was in its contracts which were approved by the KCC. The KCC held a hearing and determined that none of the customers were entitled to relief. Even though TKO admitted to all of the customers' claims, the KCC ultimately determined that the rates charged by TKO were still reasonable, resulting in no harm to the customers. The district court reversed this finding, ruling that the KCC improperly focused on rate making while ignoring TKO's improper billing practices. The district court ordered the KCC to calculate the exact amount of overbilling and require TKO to pay refunds. TKO appealed.

ISSUE: (1) KCC's ability to address overpayment

HELD: The KCC is not limited to ratemaking or rate-reviewing functions. It has broad authority to determine whether any action is unreasonable or unfair. The KCC erred by only focusing on whether TKO's rates were reasonable, ignoring TKO's flawed billing methodology. TKO's practice of changing the pressure at which gas is distributed resulted in an overcharge and was neither honest nor fair. The KCC erred by not addressing it. But the district court erred by directing the KCC on how to fix this error. The KCC has total statutory control over crafting an appropriate remedy, and the case is remanded to the KCC.

STATUTE: K.S.A. 66-1,201, -1,205, -1,205(a), -1,206, -1,206(a), -1,207, 77-621(a)(1), -621(c)(4)

OIL AND GAS—TAX
IN RE TAX APPEAL OF RIVER ROCK ENERGY COMPANY
BOARD OF TAX APPEALS—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,387—APRIL 10, 2020

FACTS: In 2016, River Rock acquired producing gas wells, leases, and other assets in Kansas. After taking possession, River Rock learned that the counties in which the wells were located assigned a total appraised value of over $13 million. River Rock appealed while paying its taxes under protest. But River Rock only paid filing fees for a small percentage of its wells. River Rock sought an abatement of the filing fees it did pay. The Property Valuation Division of the Kansas Department of Revenue intervened to defend its valuation methods. After a hearing based on written testimony, BOTA upheld the counties' valuations. River Rock appealed.

ISSUES: (1) Valuing wells based on minimum lease values; (2) minimum leave values creating arbitrary and erroneous valuations; (3) whether BOTA properly considered the evidence; (4) whether BOTA erred when valuing equipment in the wells; (5) filing fee abatements

HELD: Personal property must be appraised at its fair market value. The Kansas Oil and Gas Appraisal Guide does not comply with this statutory directive because it prevents the gross working interest in any producing well from ever dropping to zero. The use of a minimum lease value on limited-production wells creates an assessed value higher than the actual gross working interest value, arbitrarily substituting the higher of two possible values. The Guide does not allow for the proper reconciliation of market values when the working interest value differs greatly from the minimum leave value. When an appraiser uses the minimum lease value, deductions for actual costs and other expense allowances are no longer used. This prevents sufficient consideration of these costs and does not lead to a fair market value of the property. Actual evidence shows that River Rock has wells with negative gross working interest, but the assigned minimum lease values do not reflect fair market value. BOTA did not ignore relevant evidence, rather overly simplified the evidence. River Rock cannot tie the value of its equipment to variable market conditions which ultimately affect the price of natural gas. BOTA properly valued River Rock's equipment with one exception: BOTA erred when valuing segments of underground poly flow lines. BOTA disregarded uncontroverted evidence that the lines could not be salvaged without destroying them. Filing fees are not allowed if they exceed the reasonable costs of administering the appeals. Neither BOTA nor River Rock properly calculated River Rock's filing fees, but the record on appeal does not contain enough information to determine how much abatement should have been granted to River Rock. If BOTA wants to deny River Rock's request for abatement, it must explain why.

STATUTE: K.S.A. 77-603(a), -613(e), -621(a)(1), -621(c), 79-329, -331(a), -501, -503a

GARNISHMENTS
STORMONT-VAIL HEALTHCARE V. SIEVERS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 121,109—APRIL 10, 2020

FACTS: Stormont-Vail received a consent judgment against Sievers for unpaid medical expenses. The amount of the debt is undisputed. Sievers refused to set up a payment plan and instead asked Stormont-Vail to garnish him. Stormont-Vail took him up on his offer and filed two requests for orders of garnishment: one from his employer and one to attach Sievers' other property held in bank accounts. Sievers objected to the garnishment order at his bank, arguing that the funds in his bank account were exempt from attachment because the funds met the definition of "earnings." The district court disagreed with Sievers, finding that once Sievers' paycheck was deposited into a bank account the money became garnishable. Sievers appeals.

ISSUE: (1) Whether wages deposited into a bank account can be garnished

HELD: Kansas statutes create limits on how much of a debtor's earnings can be attached by a nonwage garnishment order. Only an employer can act as the garnishee for a wage garnishment. The meaning of "earnings" is expressly tied to an employer-employee relationship, and once money paid as earnings is deposited into a bank account it loses its status as earnings. The money in Sievers' bank account was garnishable, even if the funds originated from his earnings.

DISSENT: (Standridge, J.) Wages paid by an employer are earnings. So wages electronically paid to Sievers by his employer via direct deposit into his bank account meet the statutory definition of earnings and are exempt from attachment through garnishment.

STATUTE: K.S.A. 2019 Supp. 60-2310(a)(1), 61-3504(a), -3504(b), -3505(a), -3506(g), -3507, -3507(a), -3508, -3509, -3510; K.S.A. 61-3502, -3505

criminal

constitutional law—criminal procedure—evidence—juries—jury instructions
state v. albano
riley district court—affirmed
no.120,767—april 10, 2020

FACTS: Albano convicted of distribution of a controlled substance within 1,000 feet of a school. On appeal she claimed: (1) district court erred by failing to give a limiting instruction concerning the admission of evidence of Albano’s prior drug convictions; (2) district court undermined jury’s power of nullification by instructing jury that it “must” follow the law and that it was jury’s “duty” to do so; and (3) sentencing court’s use of judicial findings of prior convictions to sentence Albano violated section 5 of Kansas Constitution Bill of Rights - the right of trial by jury.

ISSUES: (1) limiting instruction—prior crimes; (2) jury instructions—power of nullification; (3) sentencing—Kansas Constitution

HELD: State’s argument that Albano invited the limiting-instruction error is rejected. A defendant does not waive applicability of a limiting instruction simply by introducing K.S.A. 60-455 evidence because a limiting instruction is required regardless of which party introduced the evidence. Here, district court erred in failing to give a limiting instruction, but this failure was not clearly erroneous. Unclear how jury could have impermissibly relied on Albano’s prior convictions as general propensity evidence when it was undisputed she committed the acts in question, and jury’s acquittal on one of the three charges establishes that jury did not impermissibly rely on the prior convictions to establish guilt.

            District court did not err in giving legally correct instructions. State v. Boothby, 310 Kan. 619 (2019), determined that the same “must follow the law” language Albano challenged in one instruction did not interfere with jury’s power to nullify. The “duty” language challenged   in a second instruction is substantively identical—telling jury to follow the law.

            There is no authority for the proposition that section 5 provides greater protection than the federal jury trial right by requiring a jury to determine criminal history. And the section 5 jury trial right does not prohibit judicial findings of prior criminal history because there was no common law right to have a jury determine criminal history when the Kansas Constitution was adopted.    

STATUTES: K.S.A. 2019 Supp. 22-3414(3); K.S.A. 60-455

constitutional law—criminal procedure—evidence
state v. R.W.
douglas district court—affirmed
no. 120,854—April 10, 2020

FACTS: Juvenile R.W. was interrogated several hours at police facility after being picked up from high school by two police officers. State later charged R.W. with multiple criminal counts including rape and aggravated battery, and district court certified R.W. for trial as an adult. R.W. filed motion to suppress statements he made during interrogation. District court granted the motion, finding R.W.’s statements were not the product of a free and independent will, and citing the officers’ promises, benefits, and reassurances as resulting in R.W.’s will being overborne. State filed interlocutory appeal.

ISSUE: Fifth Amendment—juveniles

HELD: District court’s suppression order is affirmed. Totality of circumstances in this case suggest that R.W.’s confession was not the product of a free and independent will. Standard of care to be exercised in assessing the validity of a juvenile’s statements during interrogation without counsel present is discussed. Here, substantial competent evidence supported district court’s factual findings, and district court applied the correct legal analysis. Agreement stated with specific findings and considerations in district court’s comprehensive memorandum decision. Officers may have had good intentions, but statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of an interrogation have the potential to render a confession involuntary.

STATUTES: K.S.A. 2019 Supp. 22-3603, 60-460(f); K.S.A. 60-460(f)

Tags:  Constitutional law  contracts  criminal procedure  emergency procedures  employment  evidence  garnishments  juries  jury instructions  oil and gas  quo warranto  ratemaking  sentences  statutes  tax  utilities 

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April 3, 2020 Digests

Posted By Administration, Tuesday, April 7, 2020

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF REINSTATEMENT
IN RE ROSIE M. QUINN
NO. 119,148—APRIL 3, 2020

FACTS: In 2018, Quinn's license to practice law in Kansas was indefinitely suspended. She filed a petition for reinstatement in 2019, and a hearing panel heard her application for reinstatement. After that hearing, the panel unanimously recommended Quinn's reinstatement, subject to certain conditions.

HELD: The court agrees with the hearing panel and grants the petition for reinstatement. Prior to her return to active practice, Quinn must comply with annual CLE requirements and pay all fees. Quinn's practice must be supervised for two years, and she must enter a monitoring agreement with the Kansas Lawyers Assistance Program.

Civil

ADMINISTRATIVE LAW—UTILITIES
IN RE JOINT APPLICATION OF WESTAR ENERGY AND
KANSAS GAS AND ELECTRIC CO
KANSAS CORPORATION COMMISSION—COURT OF APPEALS IS REVERSED, KCC IS REVERSED, CASE REMANDED
NO. 120,436—APRIL 3, 2020

FACTS: In 2018, Westar and Kansas Gas sought a rate increase and certain changes in residential rate design. When considering the rate design, the companies had to address a two-part rate, involving both a flat service charge and a variable energy charge based on the amount of energy used during a billing period. Some of the utilities' fixed costs are recovered through the variable energy charge. Some of the utilities' customers are attached to the electric grid but also get power through an alternative source, such as solar or wind. These customers, known as "partial requirements customers", use less generated electricity and may have zero due for variable energy charges. This creates an issue for the utility, which has the same fixed costs regardless of how much energy is purchased. In an attempt to attempt to even the ledger, the utilities received approval for a new rate structure, applicable only for partial users. Some of the parties to the agreement objected to the rate structure meant only for partial users. After that rate structure was approved, two intervenors appealed to the Court of Appeals.

ISSUE: (1) Whether the rate structure approved by the KCC is allowable

HELD: Kansas statute bars a utility from establishing higher rates or charges for any customer who uses alternative energy. Under the proposed dual-rate system, partial users will pay more for electricity than other customers. The Court of Appeals erred when it found a conflict in our statutes. The utilities are allowed to use a different rate structure for partial use customers, but that structure cannot result in price discrimination.

STATUTES: 16 U.S.C. §796 (17)(A); K.S.A. 66-117d, -118a(b), -118c, -1265(e), 77-621(c)(4)

criminal

criminal procedure—motions—sentences—statutes
state v. coleman
sedgwick district court—affirmed; court of appeals—affirmed
no. 115,293—april 3, 2020

FACTS: Coleman convicted in 2012, 2013, and 2014. In 2015 she was convicted of two counts of theft that were committed weeks after the effective date of the 2015 amendment of  K.S.A. 21-6810 in the Kansas Sentencing Guidelines Act (KSGA). Probation revoked in Coleman’s three prior cases. Coleman challenged the legality of her sentences in those three prior cases, and filed a direct appeal from the 2015 sentence. District court denied relief on all claims. Court of Appeals affirmed in unpublished opinion. In consolidated appeal, review granted on common issue of whether district court erred in scoring Coleman’s prior 1992 Kansas involuntary manslaughter conviction as a person felony.

ISSUES: (1) Classification of prior Kansas conviction—direct appeal; (2) classification of prior Kansas conviction—probation revocation

HELD: The identical-or-narrower test adopted in State v. Wetrich, 307 Kan. 552 (2018), for classifying prior out-of-state convictions applies as well to in-state Kansas convictions for crimes committed before KSGA used person and nonperson designations. Coleman’s arguments that the 1992 involuntary manslaughter statute was broader than the statute making involuntary manslaughter a person offense at the time of her 2015 theft convictions are examined and rejected. District court properly scored the 1992 conviction as a person felony when sentencing Coleman’s 2015 theft convictions.

            Coleman may not file a motion to correct an illegal sentence based on a constitutional challenge, and her 1992 conviction was properly scored in the earlier sentences. Court does not resolve whether the identical-or-narrower test, or the judicially adopted comparability rule for pre-KSGA Kansas offenses in State v. Keel, 302 Kan. 560 (2015), is applicable when pre-KSGA Kansas offenses are used to sentence crimes committed before K.S.A. 2015 Supp. 21-6810 codified the comparability requirement. 

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., -6804(a), -6810, -6811(e)(3); K.S.A. 2015 Supp. 21- 6810; K.S.A. 2014 Supp. 21-6810(d)(2); K.S.A. 2013 Supp. 21-5801(b)(6); K.S.A. 2011 Supp. 21-5202(j), -5405, -5801(b)(6); K.S.A. 20-3018(b), 21-3201(c), 60-2101(b); K.S.A. 21-3201, -3201(c), -3404 (Ensley 1988)

 

Kansas Court of Appeals

Civil

SUBROGATION—WORKERS COMPENSATION
HAWKINS V. SOUTHWEST KANSAS CO-OP SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 118,379—APRIL 3, 2020

FACTS: Hawkins suffered catastrophic injuries while working for Southwest Kansas Co-op; his injuries require on-going care. Southwest Kansas Co-op provided workers compensation benefits to Hawkins in excess of $850,000, with the expectation that payments would continue. Hawkins also filed a civil action against other parties who he believed contributed to the accident and his resulting injuries. Southwest Kansas Co-op chose not to intervene in this civil action. Hawkins either settled or received jury verdicts against multiple defendants, resulting in an award of over $4 million. After all proceedings were complete, Southwest Kansas Co-op filed a request in the workers compensation proceeding for a determination of its statutory subrogation lien and any credit for future benefits. An ALJ worked up a mathematical formula to determine how much credit Southwest Kansas Co-op should receive. Three members of the Workers Compensation Board of Appeals agreed with the ALJ and affirmed the result. Hawkins appealed the Board's decision and Southwest Kansas Co-op cross-appealed.

ISSUE: (1) Amount of subrogation award for Southwest Kansas Co-op

HELD: K.S.A. 44-504 does not anticipate liens and credits for employers based on third-party litigation with multiple settlements and verdicts. It is undisputed that Southwest Kansas Co-op is entitled to some lien and future credit, but the statute is unclear as to exactly how much. A jury found that the co-op was 25 percent at fault for Hawkins's injuries. Southwest Kansas Co-op's subrogation amount should have been decreased by an amount acknowledging their 25 percent fault. The terms of a settlement agreement between Hawkins and other parties make it difficult to calculate the amount of any subrogation lien. When recalculating the subrogation amount, the Board must consider each annual payment as a recovery actually paid.

STATUTE: K.S.A. 44-504, -504(b), -504(d), 60-258a

 

Tags:  administrative law  Attorney discipline  criminal procedure  KCC  motions  sentences  statutes  subrogation  utilities  workers comp 

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March 27, 2020 Digests

Posted By Administration, Tuesday, March 31, 2020

Kansas Supreme Court

criminal

appeals—constitutional law—criminal law—criminal procedure—
evidence—juries—jury instruction—statutes
state v. Gonzalez
wyandotte district court—affirmed
no. 119,492—march 27, 2020

FACTS: Passenger (Espinoza) in car driven by Gonzalez shot and killed a man outside a bar. Gonzalez convicted of felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. During trial, district court refused to compel testimony of Espinoza who had already pleaded guilty and been sentenced for his participation. On appeal Gonzalez argued: (1) insufficient evidence supported the convictions; (2) the attempt and conspiracy convictions were multiplicitous; (3) district court’s aiding and abetting jury instruction erroneously lowered the State’s burden of proof on specific intent crimes; (4) district court erroneously permitted Espinoza to invoke Fifth Amendment privilege; (5) State’s peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence; (2) multiplicitous offenses; (3) jury instruction—aiding and abetting; (4) Fifth Amendment—failure to compel testimony, (5) Batson challenge, (6) cumulative error 

HELD: Evidence in this case established the pair’s intent to rob the victim and an agreement to commit aggravated robbery. Evidence included detective’s testimony, without objection, that provided a concrete context to ambiguous text messages.

            District court’s instruction accurately reflected Kansas’ aiding and abetting statute, but did not accurately state applicable caselaw limiting the statute’s use when defendants are charged with aiding and abetting specific intent crimes. In this case the legal error was harmless under the clear error standard.

             Multiplicity claim, raised for first time on appeal, is considered. Gonzalez’ conspiracy and the aiding and abetting attempted aggravated robbery convictions are not multiplicitous - each requires proof of an element not required by the other.

            Gonzalez’ failure to make an adequate proffer of what Espinoza would have testified about provides no basis for appellate review of whether trial court abused its discretion in not compelling the testimony.

            Jury selection in this case is examined. No abuse of district court’s discretion in finding Gonzalez failed to show purposeful discrimination given the State’s race-neutral reasons for its peremptory strikes.

            The single error found in this case does not support application of the cumulative error doctrine.

STATUTES: K.S.A. 2018 Supp. 21-5210, -5210(a), -5301, -5301(a), -5302(a), -5402(a)(2), -5402(c)(1)(D), -5420, 22-3414(3), -3601(b)(3), -3601(b)(4); K.S.A. 60-405

 

Kansas Court of Appeals

Civil

DIVORCE—PROPERTY DIVISION
IN RE MARRIAGE OF PERALES
SALINE DISTRICT COURT—AFFIRMED
NO. 120,306—MARCH 27, 2020

FACTS: Gary Perales is serving a life sentence in prison. At the time of his divorce from Cynthia Perales, Cynthia was supporting herself and the couple's four children. Gary did not complete a property affidavit, but he has been imprisoned since 2012. The district court held a hearing to consider separation of the couple's property. At the hearing, Cynthia provided a quitclaim deed showing that Gary had deeded the house to her and testified that she needed Gary's truck to transport herself and their children. Cynthia also testified that she made payments on both the house and truck after Gary's imprisonment. Gary disputed Cynthia's testimony about the quitclaim deed and claimed that he sold both the house and his truck to his sister. After weighing the evidence, the district court ruled that it would be most equitable to award Cynthia both the house and the truck. Gary appealed.

ISSUES: (1) Award of the house; (2) requirement that Cynthia compensate Gary

HELD: There is no evidence that the district court failed to consider the home as marital property subject to division. To the contrary, the district court appropriately considered the factors established by K.S.A. 2019 Supp. 23-2802(c). A division of marital property need only be equitable, not equal. There is a statutory requirement that property division may be accomplished by the payment of a "just and proper sum" to one party. In some cases, equity may allow that sum to be zero. The extraordinary facts of this case mean the district court's award of assets to Cynthia was equitable.

STATUTE: K.S.A. 2019 Supp. 23-2801, -2802(a)(1), -2802(a)(2), -2802(c)

criminal

criminal law—statutes
state v. lucas
sedgwick district court—affirmed
no. 120,510—March 27, 2020

FACTS: Lucas convicted of being a felon in criminal possession of a “firearm or knife,” K.S.A. 2017 Supp. 216304(c)(2). The weapon in this case was a folding knife 9 inches long when unfolded, 5.5. inches long when closed, with a 4.5 in. blade. Lucas argued the folding knife was not a “knife” as defined by K.S.A. 2017 Supp. 21-6304(c)(1).

ISSUE: Statutory definition of “knife”

HELD: District court did not err in concluding the folding knife in this case is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp. 21-6304(c)(1).

STATUTE: K.S.A. 2017 Supp. 21-6304, -6304(a)(2), -6304(c)(1), -6304(c)(2)

appeals—criminal procedure—discovery—evidence—jurisdiction
state v. mundo-parra
sedgwick district court—affirmed
no. 118,875—march 27, 2020

FACTS: Mundo-Parra convicted in 2005 on no contest pleas to kidnapping and rape. In 2017 while still serving his sentence, he asked prosecutors to provide State’s investigatory files in the case, including anything that might show his innocence. District court denied the request. Mundo-Parra appealed. State argued the appeal was not timely filed within 30 days of district court’s ruling.

ISSUES: (1) Appellate jurisdiction; (2) district court’s jurisdiction; (3) postconviction discovery

HELD: State’s jurisdictional hurdle is rejected. District court entered its order electronically, with no record in district court’s file that court clerk mailed a copy of the order to Mundo-Parra. After that order had been entered Mundo-Parra made several requests for a court ruling on his discovery request, and filed his notice of appeal well within 30 days of district court’s denial of Mondo-Parra’s last request for a ruling.

            District court had jurisdiction to consider Mundo-Parra’s request for postconviction discovery, even though there was no pending motion in the criminal case and no pending civil action challenging his confinement. There is no Kansas statute governing postconviction discovery, and no statutory limit on district court’s general jurisdiction over it.

            No provision in Kansas Code of Criminal Procedure covers postconviction discovery. Kansas cases are reviewed and guidance sought from rules and statutes in federal and state jurisdictions. Panel concludes postconviction discovery sought by the defendant should be allowed when the defendant shows it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. Mundo-Parra made no such showing in this case. Instead, his request is a classic fishing expedition with no stated connection to any claim that could lead to setting aside either his no-contest pleas or his convictions.

STATUTES: K.S.A. 2019 Supp. 21-2512, 22-3210(d)(2), -3212, -3213, 60-1507, -2103(a); K.S.A. 20-301

 

Tags:  appeals  constitutional law  criminal law  criminal procedure  discovery  divorce  evidence  juries  jurisdiction  jury instructions  property division  Saline District Court  Sedgwick District Court  statutes  Wyandotte District Court 

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March 18, 2020 Digest

Posted By Administration, Monday, March 23, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE BRENT E. MAYES
NO. 27,058—MARCH 18, 2020

FACTS: In a letter submitted to the Clerk of the Appellate Courts, Brent E. Mayes voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was pending. Mr. Mayes self-reported violations of KRPC 1.1 (competence), 1.4(a) (communication), 1.8(e) (conflict of interest), and 8.4(c) (misconduct).

HELD: The court accepted Mr. Mayes's surrender and he is ordered disbarred.

Tags:  attorney discipline 

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March 13, 2020 Digests

Posted By Administration, Monday, March 16, 2020
Updated: Monday, March 16, 2020

Kansas Supreme Court

criminal

criminal procedure—evidence—jury instructions—statutes—venue
state v. galloway
cherokee district court—affirmed in part, vacated in part, remanded
no. 117,941—march 13, 2020

FACTS: Galloway sentenced to hard 50 life sentence for conviction on charges of: premeditated first-degree murder, arson, and interference with law enforcement. Prior to trial she moved for change of venue, arguing she could not receive a fair trial due to extensive pretrial publicity and the relatively small pool of jurors. She also filed motion to suppress statements she made during interrogation, arguing her lack of sleep, low blood sugar, hunger, and pregnancy accompanied by gestational diabetes deprived her of the mental capacity to make voluntary statements. District court denied both motions. On appeal, she claimed district court erred by: (1) denying motion for change of venue without addressing and applying all nine caselaw factors set forth in State v. Longeria, 301 Kan. 489 (2015), for assessing prejudice under the venue statute; (2) denying motion to suppress; (3) discussing with counsel and Galloway the answer to a jury question in a closed rather than open court; (4) instructing jury it should find her guilty if the facts supported such a finding; and (5) announcing it would not consider the absence of a criminal history as a mitigating factor because Legislature had rejected that as grounds for mitigation.

ISSUES: (1) Change of venue; (2) suppression of interrogation; (3) jury question; (4) jury’s duty instruction; (5) mitigating sentencing factors

HELD: District court’s omission of findings with regard to some of the caselaw factors was not error. Galloway did not argue all factors to the district court, or for their application. Nor did she make a sufficient showing of prejudice for a change of venue.

            Substantial competent evidence supports district court’s finding that Galloway’s statements were voluntary and made without coercion, and Galloway makes no showing warranting reversal of the denial of her motion to suppress.

            No error found on Galloway’s unsubstantiated speculation that discussion of the jury question was not conducted in open court.

            Galloway’s claim of impermissible interference with jury’s power of nullification is rejected. Same instruction was upheld in State v. Patterson, 311 Kan. __ (2020).

            District court’s statement incorrectly stated the law, and his open refusal to consider a mitigating factor listed in K.S.A. 2019 Supp. 21-6625(a) was not harmless error. Sentence vacated and case remanded for resentencing.           

STATUTES: K.S.A. 2019 Supp. 21-6625(a); 22-3420(d); 60-460(f); K.S.A. 22-2616, -2616(1)

criminal law—evidence—Fifth Amendment—jury instructions
State v. parker
wyandotte district court—affirmed
no. 118,349—march 13, 2020

FACTS: Parker convicted of premeditated first-degree murder. On appeal, he claimed the district court should have granted motion to suppress self-incriminating statements made during interrogation because investigators failed to take sufficient steps to ensure that Parker understood his Miranda rights. He also claimed district court erred by denying Parker’s request for an instruction on voluntary manslaughter committed upon a sudden quarrel or in the heat of passion.

ISSUES: (1) Motion to suppress; (2) jury instruction

HELD: Substantial competent evidence supported district court’s factual findings which showed Parker’s voluntary waiver of Miranda rights. Better practice for interrogators to read Miranda summary of rights out loud and make follow-up inquiries about whether the person being questioned understands those rights, but that protocol was not possible in this case because Parker refused to allow detectives to explain his rights out loud. Overall tenor of the interrogation showed that Parker knew what crime he had committed and how he had done it; understood the police were trying to obtain incriminating statements from him; played a cat-and-mouse game with interrogators; and understood his rights and how the interrogation process worked. District court did not err when it admitted the interrogation statements.

            In line with State v. Campbell, 308 Kan. 763 (2019), and State v. Wade, 295 Kan. 916 (20120, a voluntary manslaughter instruction would not have been factually appropriate in this case with so little evidence of heat of passion at the time of the shooting and so much evidence of calculated decision-making.

STATUTE: K.S.A. 2018 Supp. 21-5404(a)

constitutional law—criminal procedure—evidence
state v. sesmas
sedgwick district court—affirmed
no. 119,862—march 13, 2020

FACTS: Sesmas convicted of first-degree murder, kidnapping, and aggravated interference with parental custody for the killing of her friend and the kidnapping of her friend’s newborn daughter. A police certified interpreter assisted Sesmas during her interrogation. On the Miranda form Sesmas indicated “no” to talking to the police, but after asking questions about her children and husband, marked “yes” on a second Miranda form and confessed to the crimes charged. At a pretrial hearing under Jackson v. Denno, 378 U.S 368 (1964), district court found Sesmas voluntarily waived her Miranda rights and concluded the confession was voluntary, notwithstanding court’s concern with the interpreter’s dual role and statement that “it could take quite a while for a lawyer to arrive from Wichita.”: On appeal Sesma argued her post-arrest confession was involuntary because law enforcement was unfair in conducting the interview, and Sesmas was handicapped by her lack of English fluency,: She also claimed the State violated her due process rights at trial by mentioning her invocation on the first Miranda form of her right to remain silent.

ISSUES: (1) Voluntary confession; (2) reference to invocation of rights

HELD: Under totality of circumstances, Sesmas voluntarily confessed to detectives, and her incriminating statements were admissible at trial. Use of an interpreter who was not also an interrogator would have been better practice, but in this case the interpreter’s dual role and statement was not a factor in forcing a confession.

            The state is not permitted to impeach a defendant’s version of events at trial with the defendant’s post-Miranda silence. The fleeting violation of Doyle v. Ohio, 426 U.S. 610 (1976), this case was harmless error because Sesmas’ credibility was already throughly impeached by State’s evidence.

STATUTES: None

Kansas Court of Appeals

Civil

DRIVERS LICENSE—SEARCH AND SEIZURE
STRICKERT V. KANSAS DEPARTMENT OF REVENUE
FINNEY DISTRICT COURT—AFFIRMED
NO. 120,544—MARCH 13, 2020

FACTS: Officer Meinzer stopped Strickert after he left a bar late at night. While obtaining Strickert's personal information, Officer Meinzer noticed the smell of alcohol and that Strickert's eyes were bloodshot and his speech slow. After completing field sobriety tests, Strickert refused to take a preliminary breath test. Based on clues of impairment and Strickert's refusal, Officer Meinzer arrested Strickert. He later received his notice of driver's license suspension and timely requested an administrative hearing. Both the hearing officer and the district court affirmed the suspension of Strickert's driver's license, and he appealed.

ISSUES: (1) Standard of review; (2) reasonable suspicion; (3) reasonable grounds

HELD: The appropriate standard is to review the district court's order looking for substantial competent evidence that the findings were legally correct. It is not appropriate to use the "negative finding" standard of review. Strickert technically violated a traffic statute by not activating his turn signal 100 feet before turning, and the Supreme Court has already held that such failure provides reasonable suspicion to initiate a traffic stop. Strickert's bloodshot eyes and the smell of alcohol warranted an extension of the stop. Substantial competent evidence supports the district court's findings that reasonable grounds existed for Officer Meinzer to arrest Strickert.

STATUTES: K.S.A. 2019 Supp. 8-259(a), -1002(a)(1); K.S.A. 8-1548, 22-2402(1), 77-621(c)

Tags:  Constitutional law  criminal law  criminal procedure  drivers license  evidence  fifth amendment  jury instructions  search and seizure  statutes  venue 

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