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May 4, 2018 Digests

Posted By Administration, Monday, May 7, 2018
Updated: Monday, May 7, 2018

Kansas Supreme Court

ATTORNEY DISCIPLINE

RELEASE FROM PROBATION
IN THE MATTER OF LOUIS M. CLOTHIER
NO. 112,658—MAY 1, 2018

FACTS: In March 2015, Louis M. Clothier was placed on probation for a term of three years. In April 2018, Clothier filed a motion for discharge from probation, along with affidavits showing compliance with all of the terms of his probation. The Disciplinary Administrator verified that Clothier completed all required tasks and offered no objection.

HELD: After considering the motion, affidavits, and supporting evidence, Clothier is discharged from probation.

ORDER OF SUSPENSION
IN THE MATTER OF CURTIS N. HOLMES
NO. 118,310—MAY 4, 2018

FACTS: A hearing panel determined that Holmes violated Kansas Rules of Professional Conduct 1.4 (communication), 1.16(a)(1) (withdrawing from representation), 5.5(a) (unauthorized practice of law), 8.1 (false statement in connection with a disciplinary matter), 8.4(c) (engaging in conduct involving dishonesty), and 8.4(d) (engaging in conduct prejudicial to the administration of justice), as well as Supreme Court Rule 218(a) (notification of clients upon suspension). In 2015, Holmes' license was administratively suspended after he failed to pay the entire annual registration fee. Despite the suspension, Holmes continued to represent clients in multiple cases. Once this representation came to light, Holmes made false statements to the court and the Disciplinary Administrator.

HEARING PANEL: The hearing panel found the existence of several aggravating factors, including dishonest or selfish motive and a pattern of misconduct. This appeared to be part of an on-going attempt by Holmes to minimize his conduct. The disciplinary administrator recommended a 6-month suspension. Holmes asked that he be placed on probation, but he failed to follow the procedure established by Rule 211(g)(3), which eliminated probation as an option. The hearing panel recommended that Holmes be suspended for a period of 1 year.

HELD: After considering Holmes' exceptions to the hearing panel report, the court found that the decisions of the hearing panel were correct. The disciplinary administrator continued to recommend a 6-month suspension. In deference to the panel that heard the case, a majority of the court agreed with the hearing panel and imposed discipline of a one year suspension. A minority of the court would have imposed the 6-month suspension recommended by the disciplinary administrator.

Kansas Court of Appeals 

CIVIL 

WORKERS COMPENSATION
JONES V U.S.D. NO. 259
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 117,915—MAY 4, 2018

FACTS: Jones was injured at work in 2011 while moving boxes of copy paper through the school where he was employed. Jones received conservative treatment and was released back to work without restrictions, although he still complained of symptoms. Jones ultimately underwent surgery to repair an injury to his neck, but he was released back to work without permanent restrictions. Jones was injured again in 2014, and he underwent a second surgery. After his recovery, he was again released back to work without permanent restrictions. But his job had been eliminated due to his extended absence. After failing to find other employment, Jones filed for workers compensation benefits. The ALJ found that Jones suffered a 15 percent permanent partial impairment of the whole body, with 61 percent task loss. The ALJ did not consider whether there was any preexisting task loss from the 2011 injury when calculating task loss for the 2014 injury. U.S.D. No. 259 appealed, claiming the ALJ erred by not including Jones' preexisting permanent restrictions from the 2011 injury when calculating the 2014 injury's task loss. The Board agreed, ruling that the task loss calculation was incorrect. Jones appealed.

ISSUES: (1) Collateral estoppel; (2) interpretation of K.S.A. 2013 Supp. 44-510e(a)(2)(D)

HELD: The issue regarding collateral estoppel was not raised before the board or in Jones' petition for judicial review. The argument cannot be raised for the first time in his appellate brief. The board misinterpreted K.S.A. 2013 Supp. 44-510e(a)(2)(D). Jones had no permanent work restrictions following his 2011 injury. Although there was testimony that he should have had those restrictions, he did not. The board interpreted the statute by reading in language that does not exist. This matter is remanded for further consideration of Jones' award without consideration of any pre-existing work restrictions.

STATUTES: K.S.A. 2017 Supp. 77-621(c)(4); 2013 Supp. 44-510e(a)(2)(D)

Tags:  Attorney Discipline  workers compensation 

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April 27, 2018 Digests

Posted By Administration, Monday, April 30, 2018
Updated: Monday, April 30, 2018

Kansas Supreme Court

 

criminal

 

criminal law—criminal procedure—evidence—jury instructions—prosecutors sentencing—statutes
state v. butler
wyandotte district court—convictions affirmed—sentence vacated—remanded
115,604—April 27, 2018

FACTS: Butler was convicted of first-degree felony murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery. Sentence imposed included lifetime postrelease supervision. On appeal he challenged: (1) the sufficiency of the evidence supporting a finding of guilt on each of the alternative means in K.S.A. 2012 Supp. 21-5302 for committing the overt act in furtherance of the conspiracy; (2) district court’s instruction that jury had to find Butler committed the crime of conspiracy to commit aggravated robbery “knowingly” rather than “intentionally;” (3) district court’s denial of Butler’s motion for a new trial based on ineffective assistance of counsel; (4) district court’s failure to give a limiting instruction regarding evidence of prior bad acts; and (5) prosecutor’s closing argument reference to the defense theory of the case as “ridiculous.” Butler also claimed cumulative error denied him a fair trial, and claimed the district court erred by imposing lifetime postrelease supervision rather than lifetime parole.

ISSUES: (1) Alternative means, (2) jury instruction—conspiracy to commit aggravated robbery, (3) motion for new trial, (4) jury instruction - prior bad act evidence, (5) prosecutorial error, (6) cumulative error, (7) sentencing

HELD: Plain language of K.S.A. 2012 Supp. 21-5302 does not set forth alternative means for committing an overt act.  

            Under K.S.A. 2012 Supp. 21-5202 and facts in this case, it was legally appropriate for district court to instruct jury that it had to find Butler committed the crime of conspiracy to commit aggravated robbery knowingly rather than intentionally. Butler’s misplaced reliance on State v. Campbell, 217 Kan. 756 (1975), is discussed. The caselaw description of conspiracy as a specific intent crime has little relevance to the mental state now legally required as an element of the crime.

            Specific allegations of ineffective assistance of counsel are examined, finding no abuse of district court’s discretion in denying Butler’s motion for a new trial. Substantial evidence supports district court’s findings that Butler’s girlfriend did not allege an alibi defense until after Butler was convicted, that investigation of a gun located in a pawn shop was irrelevant to Butler’s defense, and that counsel’s failure to pursue phone records and forensic evidence was reasonable under the facts in this case.

            Evidence of events that were clearly part of the res gestae do not implicate K.S.A. 2012 Supp. 60-455. District court should have limited jury’s consideration of evidence regarding Butler’s drug purchases, but no clear error.

            Under facts in this case, prosecutor’s rebuttal characterization of Butler’s theory of the case as “ridiculous” was fair comment on the evidence.

            Cumulative error claim is defeated by the finding of only a single error.

            State concedes sentencing error. Lifetime postrelease supervision is vacated, and case is remanded for imposition of lifetime parole.

STATUTES: K.S.A. 2012 Supp. 21-3501(1), -3601(b)(3), -3717(b)(2), -5302, -5302(a), -5302(b), -5302(d), -5302(e), -5402(a), -6806(c), 22-3414(3), 60-455; K.S.A. 21-3201, 60-455; K.S.A. 21-3302 (Weeks)

 

Kansas Court of Appeals –

CIVIL

 

ATTORNEY FEES—CLASS ACTIONS—SHAREHOLDERS
ROSS-WILLIAMS V. BENNETT
JOHNSON DISTRICT COURT—AFFIRMED
NO. 117,139—APRIL 27, 2018
 

FACTS: After merging with Nextel Communications to form Sprint Nextel, the company booked significant financial losses. Monica Ross-Williams filed a shareholder derivative action on behalf of shareholders, claiming a breach of fiduciary duty in agreeing to the transaction. After negotiations, all parties to the shareholder derivative action agreed to a settlement. The settlement provided for reform in corporate governance and internal control policies but did not grant any monetary awards. The proposed settlement did include $4.25 million in attorney fees and expenses to be paid by Sprint. After the agreement was reached, Ross-Williams filed in Kansas district court a motion seeking approval of the proposed settlement. Notice was sent to all Sprint shareholders and one stock owner, Michael Hartleib, filed an objection not only to the settlement agreement but also to the proposed attorney fees. The district court heard extensive arguments from the parties before agreeing to substantive portions of the proposed settlement, plus attorney fees in the amount of $450,000. Hartleib appealed this ruling, while Ross-Williams cross-appealed the attorney fee award.

ISSUES: (1) Standing; (2) venue; (3) settlement agreement approval; (4) attorney fees

HELD: Kansas does not have a continuing-ownership requirement for shareholder derivative actions. So even if Ross-Williams no longer owns stock, she did at the time the suit was initiated and she has standing to pursue this action. Sprint submitted to the jurisdiction of Kansas courts and also agreed to the settlement that was enforced under Kansas law, giving Kansas venue. The district court independently analyzed the proposed settlement and considered all relevant factors. This diligence allowed for an assurance that there was no abuse of discretion, even with the heightened standard that must be applied when shareholders are not awarded any money from the settlement. There is no evidence of fraud or collusion between the parties and the substantive terms of the settlement were fairly negotiated. On cross-appeal, Ross-Williams claims that the district court erred by awarding $450,000 in attorney fees rather than the requested $4.25 million. Evidence submitted to the district court showed that the amount of work performed on this case was far outside the norm for this type of action. This is especially true after it came to light that the most unreasonable billing hours came from an attorney who had been disbarred. Counsel was entitled to be fairly compensated, and the $425,000 award made by the district court was appropriate. Even though Hartleib provided a valuable service for Sprint, there is no statute which would allow him to recover fees or expenses. The court cannot make such an award in the absence of a statute.

STATUTES: K.S.A. 2017 Supp. 60-211, -22, -223(e), -223(h), -223a, -223a(a), -223a(b)(1), -223a(b)(2), -223a(b)(3), -223a(c), -223a(d), -259(f); K.S.A. 2016 Supp. 60-259(f)

 

criminal

 

criminal law - sentencing - statutes
state v. carter
sedgwick district court - affirmed in part, vacated in part
116,223 - April 27, 2018

FACTS: Carter used a Taser when she robbed a Dollar General Store. Jury convicted her of aggravated robbery. Finding Carter used a dangerous weapon, sentencing court imposed lifetime registration as a violent offender under the Kansas Offender Registration Act (KORA).  On appeal Carter challenged the sufficiency of the evidence supporting her conviction, arguing the Taser is not truly dangerous and she displayed the taser only after the robbery had been completed by putting the store’s money in her bag. She also challenged the registration requirement, arguing she did not use a deadly weapon. 

ISSUES: (1) Sufficiency of the evidence, (2) offender registration

HELD: For purposes of the aggravated-robbery statute, a subjective test is applied to determine whether the victim perceived the weapon as dangerous. Here, sufficient evidence supports Carter’s conviction for aggravated robbery. The victim raised her hands when Carter pulled out a Taser, the victim told a 911 operator that she had been threatened with a weapon, and the jury reviewed a videotape of the events which included a showing of the weapon as Carter was still gathering the money.

For purposes of KORA, an objective test is applied to determine if the defendant used a deadly weapon. Under KORA, a weapon is deadly only when, as used, the weapon is likely to cause death. In this case the State presented no evidence to show that a Taser is a deadly weapon as defined by KORA, thus Carter’s use of a Taser did not trigger the registration requirement. Carter’s registration as a violent offender is vacated. Conflict with another panel’s published opinion, State v. Franklin, 44 Kan.App.2d 156 (2010), is recognized and discussed.

STATUTES: K.S.A. 2015 Supp. 22-4902(e)(1), -4902(e)(2); K.S.A. 2014 Supp. 21-5420; K.S.A. 20-3018(b)

 

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April 20, 2018 Digests

Posted By Administration, Monday, April 23, 2018

Kansas Supreme Court

CRIMINAL

CRIMINAL PROCEDURE—SUPPRESSION
STATE V. HANKE
HARVEY DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 114,143—APRIL 20, 2018

FACTS: A law enforcement officer learned that there was a van parked in front of a convenience store that had been running for over an hour, and it appeared that the driver was slumped in the seat. The officer walked on foot to investigate, and he did see the driver slumped in the driver's seat. He knocked to initiate contact, concerned that the driver had a medical condition. Hanke awoke, startled. There was no smell of alcohol in the van, but the officer was concerned that Hanke appeared to be disoriented and had trouble focusing. Based on the officer's experience, he was concerned that Hanke might be under the influence. Hanke agreed to a search of his van, which revealed methamphetamine and marijuana. Hanke moved to suppress the results of the search but that request was denied, and he was convicted after a bench trial. A majority of the Court of Appeals' panel affirmed, finding that the encounter between law enforcement and Hanke was voluntary. Hanke's petition for review was granted.

ISSUE: Application of Fourth Amendment

HELD: It is irrelevant whether the encounter started as voluntary or as a public safety stop. Even if the court assumes that the stop was an investigatory detention, it was justified because the officer had reasonable suspicion of illegal activity. The detention was not illegal and Hanke's consent to search was not tainted.

STATUTES: No statutes cited

Kansas Court of Appeals

CIVIL

WORKERS COMPENSATION
GILKEY V. FREDERICK WATERPROOFING
WORKERS COMPENSATION BOARD OF APPEALS—REVERSED AND REMANDED
NO. 117,259—APRIL 20, 2018

FACTS: Gilkey had a lengthy career working in construction. He was injured in a work-related car accident in 2000, and as a result, was assigned some physical restrictions. But Gilkey was unaware of these restrictions, and he continued to perform strenuous manual labor until he was injured in an accident in 2014, which resulted in back surgery. His treating physician assigned a total whole body impairment rating after this 2014 accident, and rehabilitation experts assigned task loss percentages. The ALJ took this information and assigned a 53% work disability rating. But on appeal, a majority of the Board agreed with the employer that Gilkey's 2000 accident and work restrictions meant there was no actual task loss from the 2014 accident. Gilkey appealed.

ISSUE: Calculation of task loss.

HELD: K.S.A. 2017 Supp. 44-510e(a)(2)(D) requires the exclusion of theoretical work tasks when calculating task loss directly attributable to a new injury. The work restrictions assigned to Gilkey in 2000 were not permanent, since Gilkey continued to work without restriction for 12 years. This means there was actual task loss, and the case is remanded to allow for further Board review.

STATUTES: K.S.A. 2017 Supp. 44-508, -510e(a)(2)(C), -510e(a)(2)(D), 77-621(a)(1), -621(c), -621(c)(4); K.S.A. 2014 Supp. 44-510e(a)(2)(D)

MOTION TO DISMISS—WORKERS COMPENSATION
ENDRES V. YOUNG
COWLEY DISTRICT COURT—REVERSED AND REMANDED
NO. 117,352—APRIL 20, 2018

FACTS: Steve Endres was at work when he started feeling chest pains. He sought treatment from the company nurse, who diagnosed gastric reflux. Later that night, Steve suffered a heart attack and died. Steve's widow, Amy, sued both the nurse, Kimberly Young, and the employer. Both defendants responded by claiming that Amy's exclusive remedy was through the Kansas Workers Compensation Act, not through a tort action. The district court agreed and granted the motion to dismiss. Amy appealed.

ISSUES: Recovery under workers compensation

HELD: The workers compensation statutes were overhauled in 2011, in an attempt to limit the applicability of that act to injured workers. Now injury is compensable only if caused by an accident. Young's misdiagnosis cannot be seen as an accident, meaning the injury is outside of workers compensation. And because this was decided on a motion to dismiss, there are important facts missing. This case must be remanded for further proceedings.

STATUTES: K.S.A. 2017 Supp. 44-501(c)(1); K.S.A. 2016 Supp. 60-212(b)(6); K.S.A. 2015 Supp. 44-501b(b), -501b(d), -508(d), -508(e), -508(f)(1), -508(f)(2)(B)(ii), -508(g); K.S.A. 44-501(a), -501(c), -508(d)

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April 13, 2018 Digests

Posted By Administration, Tuesday, April 17, 2018

Kansas Supreme Court

criminal

constitutional law—criminal procedure—sentencing
state v. Gilkes
wyandotte district court—reversed as to issue subject to reveiw
court of appeals—reversed as to issue subject to review
no. 109,259—april 13, 2018

FACTS: Gilkes convicted of aggravated assault. On appeal he alleged trial errors and challenged his obligation to register as an offender under the Kansas Offender Registration Act (KORA), claiming in part the district court never made a finding on the record that Gilkes used a deadly weapon in the commission of the crime. In unpublished opinion, Court of Appeals affirmed the conviction and sentence, but remanded with directions to correct the journal entry to reflect the missing registration requirement. Review granted on Gilkes’ KORA claim.

ISSUE: KORA registration requirement

HELD: Pursuant to State v. Marinelli (No. 111227, this day decided), the question on appeal is whether Gilkes is a “violent offender” who must register under KORA. In this case, jury made the deadly weapon finding, but district court made no finding on the record that Gilkes used a deadly weapon to commit the offense. Unlike Marinelli, the journal entry of judgment in this case does not reflect the requisite finding. Gilkes is not an “offender” as defined by K.S.A. 2017 Supp. 22-4902(e)(2). Panel was without authority to remand the case to the district court to make the required on-the-record finding. The order to register as a violent offender is vacated. See State v. Thomas (No. 109951, this day decided).

CONCURRENCE AND DISSENT (Rosen, J., joined by Beier and Johnson, JJ.): Concurs in the result. Disagrees with majority’s determination that registration is not part of the criminal sentence and resulting constitutional infirmities. Agrees with reasons set forth in Justice Johnson’s concurring opinion in Thomas that address additional concerns in majority’s rationale in the instant case.

STATUTES: K.S.A. 2017 Supp. 22-3504(2), -4902(a), -4902(a)(1)(N), -4902(a)(2), -4902(e)(2); K.S.A. 20-3018(b), 22-4901 et seq.

appeals—constitutional law—criminal procedure—sentencing—statutes
state v. marinelli
riley district court—affirmed; court of appeals—affirmed
no. 111,227—april 13, 2018

FACTS: Marinelli entered no contest plea to aggravated assault with a deadly weapon. District court addressed at sentencing, rather than at time of conviction, the registration requirement under the Kansas Offender Registration Act (KORA). On direct appeal, Marinelli claimed he should be excused from registration requirements because district court failed to comply with KORA’s statutory procedures. Court of Appeals affirmed in unpublished opinion. Review granted to consider whether Marinelli is a “violent offender” as defined by K.S.A. 2012 Supp. 22-4902(e)(2), and if so, whether he is excused from KORA’s registration requirement because the district court failed to comply with KORA’s statutory directive to notify him at the time of conviction of his duty to register.

ISSUES: (1) Appellate jurisdiction, (2) noncompliance with KORA statutory procedures

HELD: Issue of first impression as to whether a defendant who has entered a guilty or no contest plea has available grounds, in the KORA context, for a direct appeal. Court reviews caselaw permitting sentencing appeals following a plea of guilty or nolo contendere, and holds that KORA is not part of a defendant’s sentence. Rather, the duty to register under KORA arises (“springs into existence”) by operation of law upon the existence of distinct sets of statutory conditions identified in the opinion. Accordingly, there is jurisdiction to consider Marinelli’s direct appeal of the district court’s order to register under KORA. To be valid that registration requirement must be predicated on the district court’s finding that Marinelli used a deadly weapon in the commission of his offense. That action is appropriately viewed under K.S.A. 2017 Supp. 22-3601(a) as a judgment, decision, or intermediate order in the case.

District court’s order that Marinelli comply with KORA is affirmed. Under facts in this case and documents filed by the court, including a Sentencing Guidelines Journal Entry of Judgment, district court made the requisite finding on the record that Marinelli was a violent offender. District court’s failure to inform Marinelli on the record at the time of conviction about the procedure to register and KORA requirements did not excuse his registration obligations.

CONCURRENCE (Rosen, J., joined by Beier and Johnson, JJ.): Agrees there is jurisdiction under K.S.A. 2017 Supp. 22-3602(a) to decide if the KORA registration responsibilities imposed by the district court are invalid. Criticizes the majority’s excursion into whether KORA provisions are sentencing provisions, and its misinterpretation of State v. Jackson, 291 Kan. 34 (2010). Agrees with rationale of Justice Johnson’s concurring opinion in State v. Thomas (1099951 this day decided) that concludes the KORA registration is part of the sentencing in that case. Citing his disagreement with State v. Petersen-Bead, 304 Kan. 192, cert. denied 137 S.Ct (2016), would hold there is jurisdiction based on the court’s longstanding rule that a defendant may appeal from the sentence imposed after a plea of guilty or nolo contendere.

STATUTES: K.S.A. 2017 Supp. 22-3601, -3602, -3602(a), -4902, -4902(a), -4902(a)(4), -4902(a)(5), -4902(b)(2), -4902(c)(18), -4902(e)(2), -4902(f), -4903, -4903(a), -4904, -4904(a)(1)(A), -4904(a)(1)(B), , -4904(a)(1)(B)(iii), -4906, -4906(a)(1)(M), -4906(a)(1)(N), -4906(f), -4906((f)(2), -4906(g), -4906(i); K.S.A. 2012 Supp. 22-4902(e)(2), -4904(a)(1)(A); K.S.A. 22-2103, -3424, -3602(a), -4901et seq., 60-1507; K.S.A. 22-3602(a) (Ensley); K.S.A. 22-3601 (Weeks); K.S.A. 62-1701 (Corrick)

criminal procedure—restitution—sentencing
state v. meeks
shawnee district court—affirmed; court of appeals—affirmed
no. 113,593—april 13, 2018

FACTS: Meeks pleaded guilty to felony theft of a vehicle. District court sentenced Meeks to 11 month prison term, 12 month postrelease supervision, and ordered Meeks to pay $14,356.21 in restitution—the fair market value of the car plus the victim’s deductible—upon his release from prison and until paid in full. Meeks appealed the restitution order, arguing the amount made any plan unworkable due to his limited resources. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Restitution - unworkable plan

HELD: Wariness stated with rigid definition of an “unworkable” plan of restitution that has been evolving in Court of Appeals’ caselaw. The opinion reiterates that unworkability should be evaluated on a case-by-case basis, and cites relevant factors for consideration. On the facts in this case, the district court did not abuse its discretion when it ruled that Meeks failed to show a restitution plan was unworkable.

CONCURRENCE (Johnson, J.): Concurs in the result.

STATUTE: K.S.A. 2017 Supp. 21-6604, -6604(b)(1)

 

appeals
state v. pewenofkit
sedgwick district court—court of appeals dismissal of the appeal—affirmed
no. 109,542—april 13, 2018

FACTS: Pewenofkit pleaded no contest to kidnapping, aggravated kidnapping, and aggravated burglary. Prior to his plea, Kansas Offender Registration Act amended in 2011 to enlarge the registration requirement from ten years to lifetime registration. On appeal Pewenofkit argued for first time that imposition of the lifetime registration requirement violated the Ex Post Facto Clause. In unpublished opinion, Court of Appeals sua sponte dismissed the appeal, stating Pewenofkit failed to explain why the issue should be considered for the first time on appeal, and failed to provide any factual basis upon which to analyze his ex post facto claims on appeal. Review granted.

ISSUE: Appeal on issue not raised in district court

HELD: Pewenofkit’s petition for review failed to challenge the panel’s holdings as error. Panel’s dismissal of the appeal is affirmed

STATUTE: K.S.A. 22-4901 et seq.

appeals—constitutional law—criminal procedure—sentencing
state v. redick
shawnee district court—convictions affirmed—sentence vacated—remanded
no. 113,300—april 13, 2018

FACTS: In trial to the court, Redick was convicted of premeditated first-degree murder and arson in the killing of his girlfriend and burning of her car. District court granted defense counsel’s request for sequestration order. When defense called its first witness and admitted the witness had been in the courtroom during the state’s case, the district judge disallowed the witness’ testimony because the witness had violated the sequestration order. District judge imposed a hard 25 life sentence for the first-degree murder charge, identified the murder conviction as the “primary crime,” and sentenced Redick to 13 months on the arson, based in part on a criminal history score of “I.” On appeal Redick challenged: (1) the adequacy of his waiver of the right to jury trial, specifically the judge’s failure to tell him that a jury’s guilty verdict would have to be unanimous; (2) the district judge’s refusal to admit testimony from a defense witness who had violated the sequestration order; and (3) the legality of his sentence.

ISSUES: (1) Waiver of jury trial, (2) violation of sequestration order and exclusion of testimony, (3) illegal sentence

HELD: Waiver issue, raised for first time on appeal, is addressed on the merits. On record in this case, Redick’s waiver of his right to a jury trial was knowing and voluntary. State v. Frye, 294 Kan. 364 (2012), is factually distinguished. District judge’s colloquy during the waiver hearing was minimally adequate; her failure to specifically address the requirement that a guilty verdict be unanimous was not fatal; and Redick demonstrated his awareness and understanding of the right he affirmatively chose to surrender. Court would have preferred that the district judge explained steps that could have been taken to ensure the seating of a fair and impartial jury whose participation would have been unadulterated by prejudicial press coverage, but the omission of this information did not render Redick’s waiver unacceptable.

District judge erred as a matter of law and thus abused her discretion to the extent she treated exclusion of the defense witness’ testimony as an automatic consequence of the violation of the sequestration order. But it is impossible to determine whether the legally erroneous exclusion was harmless because defense counsel failed to proffer the unidentified witness’ testimony, and substantial circumstantial evidence supports the conviction.

Redick’s claim that his sentence violated the double rule lacks merit because that rule does not apply to off-grid sentences. However, district judge erred in identifying the off-grid crime of first-degree murder as the primary crime, with resulting error in the criminal history score used for calculating Redick’s sentence.Redick’s sentence is vacated and case is remanded for resentencing using the on-grid crime of arson as the primary crime.

CONCURRENCE (Biles, J., joined by Nuss C.J. and Stegall, J.): Agrees with majority opinion except for the jury trial waiver claim. Concurs in the result on that claim, but would affirm the district court on this point as generically as it was argued in Redick’s brief, and would hold that any argument on a more specific concern of potential juror bias was abandoned as not briefed.

STATUTE: K.S.A. 2016 Supp. 21-6604(f)(2), -6606(c), -6804, -6819(b)(3)

appeals—constitutional law—criminal procedure—sentencing
state v. rocheleau
sedgwick district court—affirmed
court of appeals—reversed
no. 110,243—april 13, 2018

FACTS: Rocheleau entered guilty plea to aggravated indecent solicitation of a child. Sentence imposed included lifetime registration under the Kansas Offender Registration Act (KORA) as amended in 2011. Rocheleau appealed, arguing lifetime registration violated the Ex Post Facto Clause because it exceeded the pre-2011 amendment registration period applicable at the time of his crime. In unpublished opinion Court of Appeals dismissed the appeal because the notice of appeal only mentioned sentencing, holding this limited its jurisdiction because KORA registration was not part of a criminal sentence. Review granted.

ISSUES: (1) Appellate jurisdiction, (2) Ex Post Facto Clause

HELD: Rocheleau’s notice of appeal should be read broadly enough to encompass his KORA challenge under the conflicting caselaw existing when he appealed. After State v. Marinelli (111227, this day decided), a criminal defendant pursuing KORA challenges is advised not to recite in the notice of appeal that the defendant is appealing only sentencing issues.

Holding in State v. Petersen-Beard, 304 Kan. 192, cert. denied 137 S.Ct. 226 (2016), defeats Rocheleau’s ex post facto claim. The lifetime registration requirement is affirmed.

CONCURRENCE (Malone, J.): No change to his position in his concurring opinion in State v. Watkins, 306 Kan. 1093 (2017), wherein he expressed disagreement with Petersen-Beard but the principle of stare decisis compelled his concurrence with the majority in that case.

CONCURRENCE AND DISSENT (Johnson, J., joined by Beier and Rosen): Agrees there is jurisdiction to hear the appeal. Disagrees with majority’s determination that KORA registration is not part of the criminal sentence.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with her votes in Petersen-Beard and other cases dealing with Eighth Amendment and Ex Post Facto claims, dissents from majority’s holding that lifetime sex offender registration is not punishment.

STATUTES: K.S.A. 2017 Supp. 22-3601, -3602(a), -3608(c), 60-102, -2103, -2103(b); K.S.A. 22-2103, -3606, -4901 et seq.

constitutional law—criminal procedure—sentencing—statutes
state v. thomas
sedgwick district court—affirmed in part, reversed in part
court of appeals—affirmed in part, reversed in part
no. 109,951—april 13, 2018

FACTS: Thomas convicted of aggravated battery for using a stiletto heel to attack a fellow dancer. District court informed Thomas at sentencing of her duty to register under Kansas Offender Registration Act (KORA) as a violent offender, but never made a finding on the record that a deadly weapon was used in the commission of the crime. On appeal Thomas claimed: (1) district court erred by disallowing cross-examination of victim about victim’s civil action against their mutual employer; (2) prosecutor’s closing argument misstated the evidence and diluted State’s burden of proof; (3) cumulative error denied her a fair trial; and (4) her KORA registration obligation should be excused. In unpublished opinion, Court of Appeals affirmed the conviction, vacated the registration requirement, and remanded to the district court for consideration of the deadly weapon question. Thomas’ petition for review granted on all issues, and on her challenge to the remand.

ISSUES: (1) Right of confrontation, (2) prosecutorial error, (3) remand for resentencing

HELD: No abuse of district court’s discretion in excluding evidence concerning the victim’s civil lawsuit. Under facts in case, district court did not cut off Thomas’ ability to confront the victim, and Thomas failed to show how details in the civil case could have provided any basis to impeach the victim’s testimony.

Prosecutor confused the parties during closing argument. This misstatement argued facts not in evidence, but the error was isolated and harmless under facts in the case.

Cumulative error doctrine not available for a single prosecutorial error.

State filed no cross-petition, so no review of panel’s holding that the KORA obligation to register as a violent offender must be triggered by the district court’s explicit finding on the record that a deadly weapon was used in the commission of a crime. But see State v. Marinelli (111227, this day decided)(holding such a finding is required before the obligation to register arises under KORA). In this case, no statutorily defined condition identified in Marinelli exists, thus the obligation to register never springs into existence. The absence of a court-made finding on the record that Thomas used a deadly weapon is not a sentencing error. The remand order is vacated.

CONCURRENCE AND DISSENT (Rosen, J., joined by Beier and Johnson, JJ.): Agrees that remand is not needed. Dissents from majority’s interpretation of KORA as applied, and disagrees with its underlying position that KORA is not a sentencing statute that increases punishment for designated convictions. Agrees with Justice Johnson’s rationale and conclusion in his concurring opinion that KORA registration is a part of sentencing.

CONCURRENCE (Johnson, J, joined by Beier and Rosen, JJ.): Concurs with the result, but challenges the majority’s newly manufactured “springing obligation” theory to support its theory that Thomas’ KORA registration obligation was not part of the sentence imposed. Would hold the district court’s sentencing pronouncement ordering Thomas to register under KORA was illegal because it did not conform to applicable statutory provisions. Would vacate that part of the pronounced sentence and hold that pursuant to the lawful sentence entered, Thomas is not required to register under KORA.

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -4902(a), -4902(a)(5), -4902(b)(2), -4902(b)(3), -4902(b)(4), -4902(c), -4902(c)(18), -4902(d), -4902(e), -4902(e)(2), -4902(f), -4904(a)(1)(B), -4904(a)(1)(B)(iii), -4906(a)(1)(M), -4906(f), -4906(g); K.S.A. 2012 Supp. 22-4904(a)(1)(A); K.S.A. 2011 Supp. 21-5413(b)(1)(B), 22-4902(e)(2), -4904(a)(2); K.S.A. 22-2101 et seq., -4901 et seq., 60-101 et seq.

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April 6, 2018 Digests

Posted By Administration, Tuesday, April 10, 2018

Kansas Supreme Court

Judicial Qualification

IN THE MATTER OF LINDA S. TRIGG, DISTRICT MAGISTRATE JUDGE
NO. 118,527—APRIL 6, 2018

FACTS: The Kansas Commission on Judicial Qualifications received complaints regarding Judge Trigg and docketed a notice of formal proceedings. Judge Trigg did not file an answer and did not attend the hearing. At the hearing, the panel determined that Judge Trigg violated judicial canons that require independence, integrity, and impartiality of the judiciary.

DISCUSSION: Judge Trigg is no longer on the bench. But because the conduct occurred while she was still a judge, the court still has jurisdiction to review it. The court concluded that Judge Trigg violated multiple rules on Canons 1 and 2 of the Kansas Code of Judicial Conduct. Because Judge Trigg is no longer on the bench, there is no need to discuss the appropriate sanction. But the court concludes that the misconduct undermined the public's faith in the judiciary.

Civil

DAMAGES—WRONGFUL DEATH
HEIMERMAN V. ROSE
ALLEN DISTRICT COURT—Affirmed
COURT OF APPEALS—AFFIRMED
NO. 114,890—APRIL 6, 2018

FACTS: Daniel Rose was killed in a traffic accident while acting in the course of his employment. He was survived by his wife, Pamela, and son, Lucas. Pamela filed a wrongful death action in state court and Lucas, who did not live in Kansas, filed suit in federal court. Pamela also received workers compensation benefits, which were subject to subrogation rights and a lien against any third-party recovery. The federal action was settled, with each party receiving a lump-sum payment. There was no categorization of damages in the federal settlement. After that settlement, Pamela filed a motion in the state case in which she argued that her federal recovery was for loss of consortium and loss of spousal services—recovery that would be exempt from the workers compensation subrogation and lien. The district court granted a motion to dismiss Pamela's action, finding that the federal settlement did not allow for the kind of action Pamela sought in state court because it was barred by the one-action rule. The Court of Appeals affirmed that ruling, and the petition for review was granted.

ISSUE: (1) Ability of a court to categorize damages

HELD: The Kansas Workers Compensation Act prevents a windfall for a deceased worker's dependents by allowing for subrogation for payments received other than for loss of consortium or loss of spousal services. In addition, Kansas law only allows one action for the wrongful death of one person. Once the federal case was settled, the Kansas case was properly dismissed.

STATUTES: K.S.A. 2016 Supp. 44-510b, 60-1901(a); K.S.A. 44-504, -504(b), 60-1902

criminal

appeals—constitutional law—criminal law—evidence—prosecutors
state v. chandler
shawnee district court—reversed and remanded
no. 108,625—April 6, 2018

FACTS: Chandler convicted of the 2002 premeditated murders of her ex-husband (Sisco) and his girlfriend. Chandler appealed, raising in part multiple claims of prosecutorial error, and challenging the sufficiency of the evidence linking her to the murders. During the appeal, Kansas Supreme Court granted Chandler’s unopposed motion for new counsel, allowed supplemental briefing, and heard second oral arguments.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial error and misconduct

HELD: State’s evidence in this case is examined in detail. Noting the low bar set by the standard of review and the caselaw applying it under similar facts, the evidence viewed in the light most favorable to the State is sufficient for a rational factfinder to find Chandler guilty beyond a reasonable doubt.

State belatedly concedes the prosecutor erred by falsely claiming Sisco got a protection from abuse (PFA) order against Chandler from the district court. Court examines the testimony about the PFA, the prosecutor’s statements, and the lack of any evidence of the PFA in the record, and explains how this error prejudiced Chandler’s due process right to a fair trial. State failed to show there was no reasonable possibility that this error contributed to the verdict. Applying distinction in State v. Sherman, 305 Kan. 88 (2016), prosecutor’s conduct in this case constituted misconduct rather than just error. Chandler’s convictions are reversed and case is remanded for further proceedings.

To avoid reoccurrence on remand, additional claims of prosecutorial error are examined.

  • There was no reasonable good-faith basis for prosecutor to believe there was substantive evidence to tell jury in opening statement that Chandler drove directly up to Nebraska in returning to Denver from Topeka, and to repeat this theme in closing.
  • It was error for prosecutor to tell jury in opening statement that a KBI computer analyst would testify that Chandler searched online for information about how to defend against murder charges or sentencing in murder cases.
  • Prosecutor’s comments about Chandler outsmarting others were error. These comments were unsupported by the evidence, and conveyed the prosecutor’s unfounded, gratuitous belief that Chandler thought the jury was not smart enough to figure out the crime.
  • Prosecutor error to expressly urge the jury to convict Chandler because Chandler “robbed her own children of their father and his fiancee.”
  • Prosecutor violated the district court’s order to not refer to people in the gallery.
  • Claim that prosecutor improperly commented during closing argument on Chandler’s post-arrest silence is discussed. Split of authority in federal courts is noted as to whether using a defendant’s post-arrest, pre-Miranda silence as evidence of guilt violates the right against self-incrimination when the silence is not preceded by police questioning. Kansas Supreme Court has not addressed this exact question and does not do so on the record in this case. But given the lack of foundation, prosecutor’s remark about Chandler’s silence was at best cavalier as to Chandler’s right to a fair trial.

STATUTES: K.S.A. 2017 Supp. 60-455; K.S.A. 21-3401(a), -4635, 60-261, -455, -3101et seq.

criminal

constitutional law—criminal procedure—evidence—juries
state v. sullivan
wyandotte district court—affirmed 
court of appeals—affirmed
no. 112,638—april 6, 2018

FACTS: Sullivan was convicted in consolidated trial of charges including multiple counts of rape and aggravated criminal sodomy. District court granted Sullivan’s request to be absent while two law enforcement audio-recorded statements were played to jury in open court, and during sentencing while anyone was speaking on behalf of the State. DVDs containing law enforcement videos of six hours of Sullivan in the interrogation room—admitted into evidence but not played in open court—went to the jury room during their deliberations. Sullivan appealed, claiming the admission of the video-recorded statements without publication in open court violated his right to be present at all critical stages of his trial, and his right to a public trial with an impartial judge. He also claimed the district court unconstitutionally considered Sullivan’s prior convictions to enhance the sentence. Court of Appeals affirmed in unpublished opinion. Sullivan’s petition for review granted.

ISSUES: (1) Right to be present at critical stages of trial, (2) right to public trial with Judge present, (3) sentencing

HELD: Any error in district court’s handling of the DVDs was harmless beyond a reasonable doubt. The critical evidence for the State’s case was played to the jury, and Sullivan demonstrated both during trial and at sentencing that he would not have exercised his right to be present if the DVDs had been played in open court. Moreover, secret jury deliberations are not a critical stage of the proceeding at which a defendant is entitled to be present. The Legislature’s subsequent amendment of K.S.A. 22-3420(c) is noted.

The proceedings related to admitting the DVDs were conducted in open court; the parties were aware of their content; the detectives testified generally in open court about their content; and Sullivan had the opportunity to cross-examine the detectives. Sullivan got the public trial to which he was entitled, and he had no right for the judge to be present during jury deliberations.

Sullivan’s sentencing claim is defeated by State v. Ivory, 273 Kan. 44 (2002).

STATUTES: K.S.A. 22-3405(1), -3420(c)

Kansas Court of Appeals

Civil

OPEN RECORDS—STATUTORY CONSTRUCTION
BAKER V. HAYDEN
JOHNSON DISTRICT COURT—REVERSED
NO. 117,989 – APRIL 6, 2018

FACTS: The Johnson County Sheriff's Department served a PFA at Baker's residence for his adult daughter. After that occurred, Baker submitted an open records request to the Johnson County District Court asking to inspect and copy audio files from two open court hearings that occurred in the PFA case. Baker was neither a party to nor counsel to a party in the PFA. Baker was told on multiple occasions that he was entitled to request the transcripts from the hearings but that the actual audio files were exempt from disclosure under the Kansas Open Records Act. The district court granted the county's motion to dismiss on grounds that Baker was not entitled to the audio recordings, and Baker appealed.

ISSUES: (1) Mootness; (2) validity of Baker's claim; (3) attorney fees

HELD: Baker was ultimately given the audio recordings before this case was heard on appeal. But this case is one that is capable of repetition and which involves an issue of public importance. There is a public interest in answering the question of whether the audio recordings were exempt from KORA disclosure. The district court misinterpreted the meaning of Supreme Court Rule 362. There is nothing in the plain language of the rule which bars access to electronically recorded hearings of open court proceedings. And there is no provision of KORA which bars release of the requested audio files. Because there is no evidence of any bad faith action, Baker is not entitled to attorney fees.

STATUTES: K.S.A. 2017 Supp. 45-219(a), -221(a), -221(a)(1), -221(a)(20), -222(d); K.S.A. 20-101, 45-218(a)

criminal

criminal law—criminal procedure—jury instructions
state v. robinson
pawnee district court—affirmed
no. 116,763—april 6, 2018

FACTS: Robinson charged and convicted of aggravated burglary. He filed an unsuccessful pretrial motion to dismiss the case, claiming selective prosecution because the charge against the other man in the burglary was reduced to criminal trespass. Robinson appealed on the selective-prosecution claim and argued the instructions given to the jury did not allow sufficient consideration of his selective-prosecution defense. Robinson also claimed insufficient evidence supported the conviction.

ISSUES: (1) Selective-prosecution claim, (2) jury instructions, (3) sufficiency of the evidence

HELD: Robinson failed to show the State singled him out based on some arbitrary or invidious criteria. Under facts in case, district court fairly assessed the victim’s testimony as focused on Robinson as the primary actor, and it was undisputed that the criminal records of the two men were substantially different.

The selective-prosecution defense is a question to be decided by the judge on a pretrial motion. It is not a defense that should have been presented to the jury. Any error in the instructions in this case had no impact on the jury’s consideration of Robinson’s actual guilt or innocence.

State presented enough evidence for jury to conclude, beyond a reasonable doubt, that Robinson entered the home intending to commit a theft.

STATUTES: K.S.A. 2017 Supp. 22-3208(3), 60-261; K.S.A. 22-3208(3)

Tags:  judicial qulification 

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March 30, 2018 Digests

Posted By Administration, Monday, April 2, 2018
Updated: Monday, April 2, 2018

Kansas Court of Appeals

Civil

 

DUTY—NEGLIGENCE—SUMMARY JUDGMENT
MONTGOMERY V. SALEH
SHAWNEE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 117,518—MARCH 30, 2018

FACTS: Montgomery and another plaintiff were injured after their vehicle was struck by a criminal defendant who was involved in a high-speed chase that was initiated by Trooper Saleh. Montgomery sued both Trooper Saleh and the State of Kansas, claiming that Trooper Saleh initiated and continued the chase with reckless disregard for the safety of others. After discovery, Trooper Saleh moved for summary judgment, claiming that Montgomery failed to state claims that were entitled to relief. The district court granted summary judgment to all defendants, and Montgomery appealed.

ISSUES: (1) Existence of a duty; (2) breach of duty; (3) causation; (4) statutory immunity

HELD: The public duty doctrine does not apply to law enforcement pursuits. Because of that fact, an officer involved in a chase owes a duty to an injured party. Trooper Saleh's actions did not satisfy the standard of care as a matter of law. Because a jury could have concluded that Trooper Saleh acted with reckless disregard, summary judgment was inappropriate. There were issues of genuine material fact surrounding causation, as both sides put forth evidence regarding the proximate cause of the accident. Because there is disputed evidence that needs to be weighed, summary judgment was inappropriate. Neither the discretionary function exception nor the method of providing police protection exception of the Kansas Tort Claims Act apply to excuse Trooper Saleh from liability.

DISSENT: (Gardner, J.) Judge Gardner would affirm the grant of summary judgment due to an inability of Montgomery to prove causation.

STATUTES: K.S.A. 2016 Supp. 60-256(c)(2), 75-6103(a), -6104, -6104(e), -6104(n); K.S.A. 8-1506, -1506(a), -1506(b), -1506(c), -1506(d), -1573

 

Criminal

 

criminal law—jury instructions—statutes
state v. lindemuth
shawnee district court—reversed and remanded
No. 116,937—march 30, 2018

FACTS: Lindemuth threatened Matthews during two phone calls regarding a truck owned by Matthews which was parked on Lindemuth’s Topeka property. One call made while Matthews was in Oklahoma, and the second call made after Matthews had flown to Topeka. During each call, Lindemuth was in his office, and Matthews was not on or near Lindemuth’s property. State charged Lindemuth with two counts of making a criminal threat. Lindemuth requested jury instruction on defense of the workplace. State argued the instruction was not proper because there was no immediate threat. District court denied Lindemuth’s request. Jury convicted Lindemuth of the threat made in the first call, and acquitted him on the second charge. Lindemuth appealed, challenging the district court’s denial of a jury instruction on defense of the workplace.

ISSUE: Defense of the workplace

HELD: K.S.A. 2017 Supp. 21-5521(a)(1)-(2), the statutes defining “use of force” and “use of deadly force,” are examined and considered with K.S.A. 2017 Supp. 21-5523, the statute permitting the defense of the workplace. Under these statutes, the lack of an immediate threat to Lindemuth by Matthews is irrelevant because the defense of the workplace statute limits the use of deadly force only to prevent “imminent death or great bodily harm,” which was not the case here. Lindemuth was entitled to a defense of the workplace instruction, and the reasonableness of Lindemuth’s threat was a question for a properly instructed jury. Reversed and remanded.

STATUTE: K.S.A. 2017 Supp. 21-5221(a)(1), -5221(a)(2), -5223, 60-251

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March 20 and March 23, 2018 Digests

Posted By Administration, Monday, March 26, 2018
Updated: Monday, March 26, 2018

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF DISBARMENT
IN THE MATTER OF JUSTIN K. HOLSTIN
NO. 20,382—MARCH 20, 2018

FACTS: In a letter signed March 14, 2018, Justin K. Holstin, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, there was a complaint pending alleging several violations of the Kansas Rules of Professional Conduct. Holstin had been through a hearing panel proceeding, where panel members became concerned that Holstin was under the influence of alcohol. Testing confirmed the presence of alcohol on Holstin's breath. At the time of surrender, Holstin's license was temporarily suspended.

HELD: The court accepted the surrender from Holstin, and he is disbarred.

criminal 

appeals, criminal law—criminal procedure—restitution—statutes
state v. arnett
wyandotte district court—court of appeals—reversed and remanded
NO. 112,572—march 23, 2018

FACTS: In exchange for $200, Arnett loaned her mother’s car to two others who burglarized houses causing damage and theft. Arnett entered guilty plea to conspiracy to commit burglary. State requested restitution of $33,248.83—for property loss from the theft, damage to one of the homes, and homeowners’ expenses. Arnett argued she should only be ordered to pay $200 she received as payment for loaning out the car. District court ordered restitution as requested by the State. Arnett appealed, arguing this violated Apprendi and Section 5 of Kansas Constitution Bill of Rights, and that the State failed to submit evidence to support amount of restitution ordered. After briefs were submitted but prior to oral argument, Arnett submitted a Rule 6.09(b) letter to Court of Appeals to argue a person convicted of conspiracy to commit burglary cannot be held liable for losses or damages resulting from any burglaries or thefts that occur. In unpublished opinion, court of appeals reversed and vacated the restitution order by deciding the case on the argument raised in the Rule 6.09(b) letter, and finding Arnett was not liable for the entire restitution amount because her crime of conspiracy to commit burglary did not cause the damages. State’s petition for review granted.

ISSUES: (1) Preservation of issue, (2) restitution statute

HELD: Under facts in this case, Arnett abandoned any argument whether her crime of conspiracy caused the alleged damages, and appellate review of this issue was precluded by Arnett’s failure to brief the issue because an appellate court will not consider an issue raised for the first time in a Rule 6.09(b) letter. Nonetheless, citing State v. Bell, 258 Kan. 123 (1995), an analogous scenario where court of appeals reviewed sua sponte an issue and review was granted with supplemental briefing to Kansas Supreme Court, Arnett’s issue is considered on the merits.

K.S.A. 2016 Supp. 21-6607(c) is interpreted. Panel erred in reading the statute as requiring that the crime of conviction have a direct causal link to any damages. The causal link between a defendant’s crime and the restitution damages for which the defendant is held liable must satisfy the traditional elements of proximate cause: cause-in-fact and legal causation. Court of appeals decision holding that restitution statute requires a direct causal connection between the crime and the damages, and vacating of the district court’s order of restitution, is reversed. Case is remanded to court of appeals to consider and decide the issues raised in Arnett’s brief to the court of Appeals.

STATUTES: K.S.A. 2016 Supp. 21-6607(c); K.S.A. 2014 Supp. 21-6607(c), -6607(c)(2)

 

appeals—criminal procedure—juries
state v. brown
sedgwick district court—affirmed
NO. 111,690—march 23, 2018

FACTS: Brown was convicted of aggravated robbery and murder. On appeal he claimed autopsy photos of the victim that were displayed during trial but never formally admitted into evidence were improperly included in the exhibits before the jury during its deliberation, and argued the contemporaneous objection requirement in K.S.A. 60-404 for preserving an issue for appellate review applied only to admitted evidence.

ISSUE: Publication of autopsy photographs to jury

HELD: Subsequent to State v. King, 288 Kan. 333 (2009), the three judicially recognized exceptions for allowing appellate review of issues not raised below have not been applied to absolve a party of K.S.A. 60-404 violations. Under facts in this case, where exhibits were identified and treated by court and counsel as if admitted into evidence, despite no formal admission, on appeal the exhibits are regarded as admitted and K.S.A. 60-404 applies.

STATUTE: K.S.A. 60-404

Tags:  Attorney Discipline 

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March 16, 2018 Digest

Posted By Administration, Monday, March 19, 2018

Kansas Supreme Court

Civil

IMMUNITY—NEGLIGENCE—TORTS
PATTERSON V. COWLEY COUNTY
COWLEY DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART
COURT OF APPEALS – AFFIRMED
NO. 114,705—MARCH 16, 2018

FACTS: Jason Patterson and Cortney Brewer drowned when they drove their vehicle off a roadway and into the Arkansas River. The road, which was located in Bolton Township in Cowley County, abruptly ended at the river. The County placed a "Pavement Ends" sign where the road transitioned from paved, county road to unpaved, township road. Beyond that, there was no signage to warn drivers that the road ended and the river began. After the accident, Patterson's widow filed suit against the County and the Township, claiming that all parties negligently failed to provide adequate warnings and barricades. The district court granted summary judgment to the Township, finding that it had no legal duty to erect any signage or barricades. As to the County, the district court found that the County was immune under the Kansas Tort Claims Act for failing to post an advisory speed plaque. But the district court refused to enter judgment on the issue of whether the County was negligent for failing to place a "Dead End" or "No Outlet" sign at the end of the pavement. The court similarly failed to find immunity under the KTCA's recreational use exception. Patterson and the County were each allowed to pursue interlocutory appeals. The Court of Appeals affirmed that the County was not entitled to the recreational use or inspection immunity but reversed the district court's ruling on the County's discretionary function immunity. The Supreme Court granted review.

ISSUES: (1) Township duty to install traffic-control devices; (2) county duty to conduct an engineering study; (3) county discretionary function immunity;

HELD: The Township had no statutory duty to place or maintain traffic-control devices. And there is no statute that provides the Township with the authority to adopt ordinances or regulations relating to vehicular traffic. In that absence, the Township had no duty to erect traffic-control devices and was entitled to summary judgment. The Manual on Uniform Traffic Control Devices does not require periodic surveys of the County's roadways that are meant to preemptively spot trouble. All traffic-control devices placed by local authorities must comply with the MUTCD. In this case, the MUTCD did not require the signs sought by Patterson. In the absence of a mandate, the County's failure to post a sign was a discretionary function and entitled to immunity. Because claims against the County are resolved, it is unnecessary to address analysis of the recreational use and inspection immunity defenses.

STATUTES: K.S.A. 2017 Supp. 8-1432. -2005, 68-101(e), -526, -526(b), 75-6102, -6104(h), 80-101; K.S.A. 8-1432, -1442, -1447, -1512(a), -2003, 68-523, 75-6101, 80-301(a), -306, -307

Tags:  Cowley 

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March 9, 2018 Digests

Posted By Administration, Tuesday, March 13, 2018

Kansas Supreme Court

CRIMINAL

criminal law—criminal procedure—sentences—statutes
state v. Buell
Shawnee district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,881–March 9, 2018

FACTS: Buell convicted of robbery and attempted kidnapping. In calculating Buell’s criminal history, sentencing court classified Buell’s two prior Florida burglary juvenile adjudications as person felonies. Buell appealed, arguing the Florida adjudications should not have been classified as person felonies because Kansas had no comparable offense. Court of Appeals affirmed Buell’s criminal history and sentence, finding the burgled structure requirements in the Kansas and Florida statutes were comparable, and it was irrelevant that the intent element in the Florida statute differed from the specific intent required for the Kansas offense. 52 Kan.App.2d 818 (2016). Buell’s petition for review granted.

ISSUE: Classification of out of state conviction

HELD: Panel’s single-element view of comparability is rejected. Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Buell’s prior Florida burglary juvenile adjudications had no comparable offense in the Kansas criminal code when Buell committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Florida adjudications must be scored as nonperson felonies. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2015 Supp. 21-6811(e); K.S.A. 2011 Supp. 21-5807, -6804, -6810(a), -6811(e)

 

appeals—constitutional law—criminal law
criminal procedure—evidence—jury instructions—statutes
state v. gonzalez
pottawatomie district court—affirmed; court of appeals—affirmed
NO. 112,841—march 9, 2018

FACTS: Gonzalez was convicted of unintentional second-degree murder for a shooting death. On appeal Gonzalez claimed for first time that the statute defining unintentional second-degree murder is unconstitutionally vague. He also claimed insufficient evidence supported the conviction; alleged the trial court erred in answering a jury question that sought clarification of the differences between unintentional second-degree murder and involuntary manslaughter; and claimed the trial court should have sua sponte given a limiting instruction about evidence of Gonzalez aiming gun at a passerby some 15 minutes before fatally shooting the victim. Court of Appeals affirmed in an unpublished opinion. Gonzalez’ petition for review granted.

ISSUES: (1) Constitutionality of unintentional second-degree murder, (2) sufficiency of the evidence, (3) jury question, (4) limiting instruction

HELD: Statute defining unintentional second-degree murder is not unconstitutionally vague. Gonzalez’ arguments regarding State v. Deal, 293 Kan. 872 (2012), are rejected. The amended definition of “recklessly” in the 2010 recodification of Kansas Criminal Code does not alter the rationale in State v. Robinson, 261 Kan. 865 (1997), that a difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind. Finally, Gonzalez’ claim based on Johnson v. United States, 135 S.Ct. 2551 (2015), is misplaced because Johnson does not invalidate Robinson’s rationale.

Jury’s verdict was supported by sufficient evidence which established not only reckless behavior, but also circumstances manifesting extreme indifference to the value of human life.

Gonzalez’ constitutional and statutory rights to be present were violated when trial court prepared the jury question response without Gonzalez or his attorney being present, but that error was harmless beyond a reasonable doubt in light of the entire record. Gonzalez waived or abandoned any challenge to panel’s analysis that trial court’s written response did not violate Gonzalez’ right to a public trial, and Kansas Supreme Court declines to address the public trial question. District court did not abuse its discretion by referring the jury back to the given instructions.

Panel correctly held the district court did not err in failing to give a limiting instruction. The evidence at issue was admitted independent of K.S.A. 2016 Supp. 60-455.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5403(a)(2), -5405(a)(1), 22-3405(a), -3414(3), -34120(d), 60-455; K.S.A. 20-3018, -3018(b), 21-3101(c), 22-3417, 60-455, -2101(b)

criminal law—criminal procedure—sentences—statutes
state v. moore
sedgwick district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,545—march 9, 2018

FACTS: Moore convicted of aggravated indecent liberties with a child. In calculating Moore’s criminal history, sentencing court classified Moore’s 1984 Oregon burglary conviction as a person felony. Moore later filed a motion to correct an illegal sentence, arguing his pre-1993 out-of-state burglary conviction should have been scored as a nonperson felony. District court summarily denied the motion. Moore appealed. Court of Appeals affirmed the denial, finding the burgled structure in the Oregon crime comparable to the dwelling in the Kansas burglary statute, notwithstanding other disparities in the respective crimes’ elements. Moore v. State,  52 Kan.App.2d 799 (2016). Review granted.

ISSUE: Classification of out of state conviction

HELD: Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Moore’s 1984 Oregon conviction did not have any comparable offense in the Kansas criminal code when Moore committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Oregon conviction must be scored as a nonperson felony. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2004 Supp. 21-4704, -4711(e); K.S.A. 21-3715, -4710(a)

appeals—criminal law—criminal procedure—prosecutors—sentences—statutes
state v. sturgis
sedgwick district court—affirmed in part and reversed in part, sentence vacated, remanded
court of appeals—affirmed in part and modified in part
NO. 112,544—march 9, 2018

FACTS: Sturgis was convicted of theft and criminal possession of firearm. In calculating Sturgis’ criminal history, sentencing court classified a prior Michigan conviction for third-degree home invasion as a person offense. Sturgis appealed claiming: (1) error by prosecutor’s comments during closing argument, and (2) error in sentencing court’s classification of the prior Michigan conviction. In unpublished opinion, Court of Appeals found prosecutor misstated the evidence and improperly commented on drug use, but there errors were harmless. Panel also determined the elements of the Michigan offense were broader than the Kansas person felony crime of burglary of a dwelling, but district court should have conducted a modified categorical approach to determine which of the Michigan statute’s alternative elements formed the basis of Sturgis’ conviction.  Sturgis’ petition for review granted. While appeal was pending, State filed change-of-status letter in September 2017 of Sturgis’ release in June 2016.

ISSUES: (1) Custodial status, (2) prosecutorial misconduct, (3) classification of out of state conviction

HELD: State did not argue that the issues presented for review are moot, thus issue of mootness is deemed abandoned.

Each allegation of prosecutorial error is examined. Prosecutor’s comment on Sturgis’ testimony was fair comment to point out inconsistencies and weaknesses, rather than impermissibly comment on Sturgis’ credibility. Prosecutor misstated Sturgis’ testimony, but that error was not a game-changer. Prosecutor’s improper comment implying drug use cuffed the line of reversibility, but panel’s finding of harmless error is affirmed.

Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Sturgis’ Michigan home invasion conviction was not comparable to the Kansas burglary of a dwelling offense as it existed when Sturgis committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Michigan conviction must be scored as a nonperson felony. Convictions are affirmed, sentence is vacated, and matter is remanded for resentencing.

STATUTES:  K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2012 Supp. 21-5807(a)(1), -6810(a), -6811(e)

appeals—criminal procedure—sentences—statutes
state v. warren
wyandotte district court—sentence vacated, remanded
NO. 115,972—march 9, 2018

FACTS: Warren was convicted of premeditated first-degree murder, second-degree murder, and attempted first-degree murder. Hard 50 life sentence was imposed for the off-grid first-degree murder, to run concurrently with the155-month concurrent on-grid sentences for the remaining two counts. Following Alleyne v United States, 570 U.S. 99 (2013), and State v. Santo, 299 Kan. 102 (2014), Warren’s Hard 50 sentence was vacated and case remanded for resentencing. On remand, State sought a lesser sentence that did not constitutionally require impaneling a jury. District court imposed Hard 25 sentence, and ordered all sentences to run consecutively. Warren appealed, arguing State v. Guder, 293 Kan. 763 (2012), and the Kansas Sentencing Guidelines Act (KSGA), barred district court from changing the two non-vacated sentences in length and sequence.

ISSUE: Resentencing on remand

HELD: Holding in Guder is affirmed. KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences not vacated on appeal, barring the need to alter a non-vacated as a matter of law to avoid an illegal sentence. Applying Guder to facts of this case, district court on remand improperly modified the off-grid sentence to run consecutive to Warren’s on-grid sentence. District court made improper de facto modification to sentences that had not been vacated on appeal, and acted inconsistently with the service of sentence sequence contemplated by K.S.A. 21-4720(b)(2). Remanded for resentencing. District court is ordered to reinstate the original 155-month concurrent on-grid sentences and to run it concurrent with the new Hard 25 off-grid sentence.

STATUTE: K.S.A. 21-4701 et seq., -4720(b), -4720(b)(2), -4720(b)(5), 22-3601(b)(3)

constitutional law—courts—criminal procedure—sentences—statutes
State v. Wetrich
Johnson county district court—reversed, sentence vacated, remanded
court of appeals—affirmed
NO. 112,361—march 9, 2018

FACTS: Prior to sentencing on Kansas offenses, Wetrich unsuccessfully tried to challenge the criminal history scoring of his 1988 Missouri burglary as a person felony.  Court of Appeals reversed and ordered district court to conduct a resentencing hearing. District court again scored the Missouri conviction as a person felony, finding “dwelling” in Kansas statute was comparable with “habitable structure” in the Missouri statute. In unpublished opinion, Court of Appeals vacated Wetrich’s sentence and remanded for resentencing with the correct criminal history score. State petitioned for review, citing a split of authority among Court of Appeals panels regarding the comparability of the Missouri burglary statute.

ISSUE: Classification of out-of-state burglary conviction

HELD: The extent to which recent United States Supreme Court decisions constitutionally mandate the federal identical-or-narrower rule is not examined because issue in this case is resolved by statutory interpretation. For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. Comparing elements of the Missouri and Kansas burglary offenses, two elements are broader in the Missouri statute - the specific intent required and the structure involved. Wetrich’s prior Missouri conviction should have been classified as a nonperson felony. Reversed, sentence vacated, and case remanded for resentencing.   

STATUTES: K.S.A. 2017 Supp. 21-5807(a)(1), -6811(d)(1), -6811(e), -6811(e)(2)(A), -6811(e)(3); K.S.A. 2008 Supp. 21-4704, -4705, -4710, -4710(a); K.S.A. 21-3110, -3110(7), -3715, -3715(a), -4711, -4711(d)(1), -4711(e)

Kansas Court of Appeals

CIVIL

OPEN RECORDS—STATUTORY INTERPRETATION
CLARK V. USD 287
FRANKLIN DISTRICT COURT—REVERSED AND REMANDED
NO. 117,343—MARCH 9, 2018

FACTS: Gene Hirt was barred from school district property after district officials alleged that he behaved inappropriately at a school board meeting. After reading about the incident, Clark became concerned about the letter that Hirt received, and he wanted to know the exact source and meaning of the district's policy. Clark filed a Kansas Open Records Act request seeking any disciplinary action concerning Hirt as well as any reference to Hirt in official district memorandum. The district denied the request on grounds that it could not disclose correspondence between the district and a private individual. Clark then filed a second KORA request seeking copies of procedures and guidelines that applied to members of the public. The district sent some materials to Clark, but Clark did not believe the materials were responsive to his request, so he filed a complaint in district court. The district court agreed with the district that the letter to Hirt was exempt from disclosure. The district court believed that the district's disclosure of the other materials was appropriate, but that a delay in responding was a technical violation. The court awarded Clark nominal damages and costs. Both Clark and the district appealed.

ISSUES: (1) Mootness; (2) duty to disclose the letter; (3) damages and costs

HELD: Although it is undisputed that Clark now has the letter to Hirt, this appeal is not moot because a question persists regarding whether the district's refusal to provide the letter was allowed under KORA. Although the letter between the district and Hirt was correspondence regarding a private individual, an exception to this exception exists. The district's power to ban a citizen from its property came from the legislative mandate that school boards are allowed to control their property. Because of this power, the district's refusal to provide the letter to Clark violated KORA. Although the district did technically violate KORA by not timely providing materials to Clark, there is no statutory authority for an award of either damages or costs. The district court made no finding that the district acted in bad faith, and the record shows a good-faith effort to comply with Clark's numerous KORA requests. For those reasons, the award of damages and fees was inappropriate and must be reversed.

STATUTES: K.S.A. 2017 Supp. 45-219, -220, -221, -221(a)(14), -222(a), -222(d), 72-1138(e)(1), 1416, -3216(b), -3216(d); K.S.A.  2015 Supp. 45-221(a)(14); K.S.A. 45-216, -218(a), -218(d)

CRIMINAL

 

CONSTITUTIONAL—TRAFFIC—SENTENCING
STATE V. WILLIAMS
SEDGWICK DISTRICT COURT— REVERSED  IN PART, VACATED IN PART
NO.  116,068— MARCH 9, 2018

FACTS: Williams was charged with refusing to submit to a breath test, felony DUI, and failure to maintain a single lane. Because he was charged with a felony, the complaint referenced a prior DUI conviction from municipal court. Williams filed a motion to dismiss the refusal to test count, claiming that the statute unconstitutionally criminalized his failure to submit to a breath test. He also claimed that his prior felony conviction could not be used to enhance his sentence. After that motion was denied, the case was tried, and Williams was found guilty. He objected at sentencing to the enhancement. He appealed his conviction and sentence.

ISSUES: (1) Validity of conviction for failure to submit to a breath test; (2) constitutionality of sentence

HELD: Because K.S.A. 2016 Supp.8-1025 was found to be unconstitutional, Williams' conviction for failure to submit to a breath test must be vacated. There is a clear difference between the municipal ordinance that served as the basis for Williams' prior conviction and the state statute. The Wichita ordinance was broader than the state statute, which means that convictions obtained under the ordinance cannot be used to enhance a punishment.

STATUTES: K.S.A.  2016 Supp. 8-1014, -1025, -1485, -1567, -1567(a), -1567(b)(1)(B), -1567(i)(1), -1567(j), 21-6811(c), -6811(e);  K.S.A. 2012 Supp. 8-1025

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March 2, 2018 Digests

Posted By Administration, Monday, March 5, 2018

Kansas Supreme Court

Attorney Discipline

 

ORDER OF SUSPENSION
IN THE MATTER OF LANCE M. HALEY
NO. 118,378—MARCH 2, 2018

FACTS: A hearing panel determined that Haley violated KRPC 1.3 (diligence), 3.2 (expediting litigation), 5.5(a) (unauthorized practice of law), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). Haley's license to practice law in Missouri was suspended in 2007 after he failed to file an appeal in federal court. At the same time, Haley failed to complete his annual registration requirements in Kansas, and his Kansas law license was suspended. It was not until Haley began to explore reinstatement that the Kansas disciplinary administrator learned of Haley's misconduct suspension in Missouri. Haley's Missouri license was reinstated in 2015, although he was placed on probation. But he never addressed the reciprocal discipline issues that existed in Kansas.

HEARING PANEL: Most of the conduct addressed by the hearing panel occurred in Missouri. But Haley did self-report one instance of unauthorized practice which occurred when he prepared a codicil for his mother's will. While Haley's experience with the practice of law was an aggravating factor, there were significant mitigating factors including mental health conditions and Haley's cooperation with the process. The disciplinary administrator recommended that Haley be suspended for one year, with that suspension stayed so that Haley could complete a term of probation. The hearing panel agreed with the disciplinary administrator and made that recommendation to the court.

HELD: After considering the hearing report, the court imposed a one-year disciplinary suspension. If Haley is able to satisfy all administrative requirements to end his administrative suspension, he will be allowed to petition the court for an order to suspend the disciplinary suspension and the imposition of a two-year probation period.

 

ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF ELIZABETH ANNE HUEBEN
NO. 113,928—MARCH 1, 2018

FACTS: In October 2015, the court stayed the imposition of a two-year suspension and placed Hueben on probation for two years, with specific conditions. In November 2017, Hueben filed a motion for discharge from probation along with evidence of her compliance. That compliance was confirmed by the Office of the Disciplinary Administrator.

HELD: After reviewing the motion, affidavits, and recommendation of the disciplinary administrator, the motion is granted. Hueben is discharged from probation and this matter is closed.

 

CRIMINAL

 

constitutional law—criminal law—criminal procedure—Fifth Amendment—immunity—jurisdiction—statutes
state v. delacruz
reno district court—reversed and sentence vacated—court of appeals—reversed
No. 111,795—march 2,2018

FACTS: Victim murdered in robbery committed by Delacruz and four others, including Waller. Delacruz convicted of aggravated robbery. Thereafter, State subpoenaed Delacruz as witness at Waller’s murder trial. Delacruz refused court orders to testify, claiming in part the immunity offered did not protect his Fifth Amendment right against self incrimination. State filed accusation of contempt, and jury found Delacruz guilty of direct criminal contempt of court. A 108-month sentence imposed, consecutive to his 83-month aggravated robbery sentence. Delacruz appealed on his Fifth Amendment claim, and challenged the length of his sentence. Court of Appeals affirmed the contempt conviction and sentence. 52 Kan.App.2d 153 (2015).

ISSUES: (1)  Subject matter jurisdiction, (2) fifth amendment right against self incrimination

HELD: Court considered sua sponte whether contempt order was void for lack of jurisdiction. District court’s journal entry failed to comply with the compulsory statutory procedure in K.S.A. 20-1203 for direct contempt, but Delacruz failed to challenge the district court’s jurisdiction and a decision on the merits is especially clear. Court presumes, without deciding, that district court did not lose jurisdiction to find Delacruz in direct contempt of court through a deficient journal entry.

            State granted Delacruz mere use immunity, rather than derivative immunity. Delacruz had a valid Fifth Amendment right to refuse to testify because the immunity granted to him was not coextensive with his constitutional right against self-incrimination. The order of contempt is reversed, and the sentence imposed is vacated.

CONCURRENCE: (Johnson, J.) Concurs in the result.

STATUTE: K.S.A. 20-1201, -1203, 22-3415, -3415(a), -3415(b)(2), -3415(c), 60-425

 

constitutional law—criminal procedure—statutes
state v. hayes
atchison district court—affirmed
No. 116,717—march 2, 2018

FACTS: Hayes was convicted in 1994 of first-degree murder, aggravated robbery, and conspiracy to commit robbery. Convictions affirmed on direct appeal, 258 Kan. 629 (1995). In 2015 Hayes filed pro se motion to correct an illegal sentence. District court summarily dismissed the motion, finding no merit or legal basis. Hayes appealed, claiming district court denied him due process by failing to hold a hearing on the motion without Hayes being present, as required by the plain language of K.S.A. 22-3504.

ISSUE: Motion to correct an illegal sentence

HELD: Hayes’ statutory argument is defeated by holding in State v. Campbell, 307 Kan. 130 (2017), that a district court’s preliminary examination of a motion to correct an illegal sentence does not trigger the movant’s right to be present. Hayes’ due process claim is defeated by holding in State v. Swafford,  306 Kan. 537 (2017), that the summary denial, without a hearing, of a motion to correct an illegal sentence does not run afoul of the Fourteenth Amendment’s due process guarantee.

STATUTES: K.S.A. 2017 Supp. 22-3504(1) -3504(3), -3601(b)(3); K.S.A. 2016 Supp. 21-6801 et seq., K.S.A. 22-3504

 

Kansas Court of Appeals

CRIMINAL

 

constitutional law—criminal law—Evidence—Fourth Amendment -
state v. perkins
ellis district court—affirmed
No. 112,449—march 2, 2018

FACTS: Officer stopped Perkins for traffic infraction, conducted field sobriety tests, and arrested him for driving under the influence of alcohol. Result of agreed-to breath test was over the legal limit. Perkins moved to suppress the breath test results, claiming consent was coerced and involuntary, and breath test was an unreasonable search that violated Fourth Amendment. District court denied the motion and convicted Perkins on stipulated facts. Perkins appealed. Court ordered supplemental briefing to address rulings by the United States and Kansas supreme courts while this appeal was pending. State argued the warrantless breath test result was constitutionally admissible as a result of a search incident to an arrest. Alternatively, State argued for application of the good-faith exception to the exclusionary rule.

ISSUES: (1) Search incident to arrest, (2) good-faith exception to the exclusionary rule

HELD: District court correctly denied Perkins’ motion to suppress. Under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and State v. Nece, 303 Kan. 888 (2016)(Nece I), aff’d on reh’g, 306 Kan. 679 (2017)(Nece II), Perkins’ consent was coerced because he was told it was a crime to refuse the test, but officer was permitted to conduct the breath test in this case as a lawful search incident to arrest.

Additionally, the breath test result was admissible because the officer, in good faith, acted in reliance on the implied consent statute before it was ruled unconstitutional by the Kansas Supreme Court.

CONCURRENCE (Atcheson, J.): Agrees the good-faith exception to the exclusionary rule applies here, and district court’s denial of the suppression motion should have been affirmed on that basis alone. Majority should have declined to explore alternative pathway of search-incident-to-arrest exception to the Fourth Amendment warrant requirement. He is unpersuaded that the search-incident-arrest exception provides an alternative rationale in this case, and voices risk of implicitly promoting untoward government action and Fourth Amendment violations.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025; K.S.A. 2014 Supp. 8-1025; K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B)

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