Print Page | Sign In | Register
Appellate Court Digests
Blog Home All Blogs
@@WEBSITE_ID@@

 

Search all posts for:   

 

Top tags: criminal procedure  statutes  Attorney Discipline  constitutional law  evidence  Sedgwick District  Sedgwick District Court  motions  Criminal Law  Appeals  jury instructions  Johnson District Court  Wyandotte District  sentencing  Shawnee District  Shawnee District Court  jurisdiction  Sentences  juries  Johnson District  Reno District  Saline District  Sedgwick  8807  Fourth Amendment  Reno District Court  search and seizure  appellate procedure  Douglas District  habeas corpus 

December 6, 2019 Digests

Posted By Administration, Monday, December 9, 2019

Kansas Supreme Court

 

Attorney Discipline

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

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

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

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

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

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

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

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

Court Reporter Discipline

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

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

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

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

Civil

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

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

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

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

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

criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: (1) Statue of limitations—excusable neglect

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

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

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

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

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

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

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

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

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

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

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

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

Share |
PermalinkComments (0)
 

November 27, 2019 Digests

Posted By Administration, Monday, December 2, 2019

Kansas Supreme Court

criminaL

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

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

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

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

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

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

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

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

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

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

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

Kansas Court of Appeals

Civil

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

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

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

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

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

 

criminal

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

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

ISSUE: (1) Search and seizure—traffic stop

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

STATUTES: None

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

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

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

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

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

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

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

Share |
PermalinkComments (0)
 

November 22, 2019 Digest

Posted By Administration, Monday, November 25, 2019

Kansas Court of Appeals

Civil

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

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

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

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

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

Tags:  adoption  jurisdiction  sufficiency of evidence  termination of rights 

Share |
PermalinkComments (0)
 

November 15, 2019 Digests

Posted By Administration, Monday, November 18, 2019

Kansas Supreme Court

Civil

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

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

ISSUE: (1) Adequacy of jury instructions

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

STATUTES: No statutes cited.

 

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

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

ISSUE: (1) Timeliness of petition

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

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

 

Kansas Court of Appeals

 

criminal

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

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

ISSUE: Fourth Amendment—welfare check

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

STATUTES: None

 

 

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

Share |
PermalinkComments (0)
 

November 8, 2019 Digests

Posted By Administration, Tuesday, November 12, 2019

Kansas Court of Appeals

 

criminal

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

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

ISSUE: Speedy trial statute

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

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

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

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

ISSUE: Emergency aid exception to warrantless search

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

STATUTES: None

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

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

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

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

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

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

Share |
PermalinkComments (0)
 

November 1, 2019 Digests

Posted By Administration, Monday, November 4, 2019

Kansas Supreme Court

 

Civil

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

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

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

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

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

 

criminal

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

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

ISSUE: (1) Speedy trial

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

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

 

Kansas Court of Appeals

criminal

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

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

ISSUE: Duty to disclose evidence favorable to the defense

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

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

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

Share |
PermalinkComments (0)
 

October 25, 2019 Digests

Posted By Administration, Monday, October 28, 2019

Kansas Supreme Court

 

Civil

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

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

ISSUE:  (1) Recovery under the KPLA

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

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

 

Criminal

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

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

Share |
PermalinkComments (0)
 

October 18, 2019 Digests

Posted By Administration, Monday, October 21, 2019

Kansas Court of Appeals

Civil

CHILD IN NEED OF CARE
IN RE D.H.
ELLIS DISTRICT COURT—REVERSED AND REMANDED
NO. 121,131—OCTOBER 18, 2019

FACTS: D.H. was born in December 2007. Mother and Father were not married and their relationship ended soon after D.H. was born. When D.H. was an infant, the State alleged that D.H. was a child in need of care. In a companion paternity case, Father's paternity was legally established. Father used that paternity case to seek residency and parenting time decisions for D.H. After a hearing, Father was given primary residency of D.H., with Mother having parenting time once per week. Soon after this hearing, Mother moved out of state. She delivered a son shortly after that, who was later diagnosed with autism. Mother sought and received services for this child, and also sought and received financial and residential stability for herself. For the next six years, Mother spoke on the phone with D.H., but did not actually visit in person. Mother finally had a personal visit with D.H. in 2017. Father died by suicide in 2018. Because of his death, D.H. was placed in protective custody and later sent to live with her paternal grandfather. The State filed a CINC petition. Mother traveled to personally appear at the temporary custody hearing. After hearing evidence, the district court found that D.H. was a CINC because Mother abandoned her. Mother appealed.

ISSUES: (1) Relevant time period; (2) sufficiency of the evidence

HELD: The district court found that Mother abandoned D.H. in 2009, meaning that D.H. was without adequate parental control at the time of the CINC hearing. The plain language of the statute does not require the district court to make its adjudication decision based only on the circumstances that exist on the day of the adjudication hearing. Rather, the district court's decision should be guided by the temporal language used in the relevant statutory subsection that is being considered. There was insufficient evidence presented that D.H. was in need of care.

STATUTE: K.S.A. 2018 Supp. 38-2202, -2202(a), -2202(d), -2250, -2251

JURY INSTRUCTIONS—SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF QUILLEN
JOHNSON DISTRICT COURT—VACATED AND REMANDED
NO. 120,184—OCTOBER 18, 2019

FACTS: Richard Quillen was committed as a sexually violent predator in 2006. As part of his civil commitment, Quillen was entitled to an annual review hearing. In 2013, Quillen asked for a jury trial when he challenged the Kansas Department for Aging and Disability Services' recommendation that he remain in custody. That request was granted, and after a hearing the jury found that the State met its burden to prove that Quillen did not meet the criteria for transitional release. Quillen sought a new trial, claiming the district court violated his due process rights by failing to instruct the jury on "serious difficulty controlling behavior" as a separate element that the State must prove. The district court denied the motion and Quillen appealed.

ISSUE: (1) Jury instructions

HELD: Quillen questioned whether the elements required to prove a committed person is not safe to be sent to transitional release are the same as those required to initially commit an individual. They are. Despite statutory changes and a consent decree, Quillen correctly notes that the State is constitutionally required to prove that Quillen would have serious difficulty controlling his behavior if transitionally released. The district court erred by not adding that essential element to the jury instructions, and the error was prejudicial. Quillen is entitled to a new trial.

STATUTE: K.S.A. 2018 Supp. 59-29a02(a), -29a07(a), -29a08, -29a08(a), -29a08(c), -29a08(d), -29a08(g)

Tags:  CINC  Ellis District Court  Johnson District Court  Sexually violent predators 

Share |
PermalinkComments (0)
 

October 11, 2019 Digests

Posted By Administration, Tuesday, October 15, 2019

Kansas Supreme Court

Civil

DUTY—IMMUNITY—LAW ENFORCEMENT
WILLIAMS V. C-U-OUT BAIL BONDS
JOHNSON DISTRICT COURT—COURT OF APPEALS IS REVERSED,
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 116,883—OCTOBER 11, 2019

FACTS: Agents from C-U-Out Bail Bonds came to the Williamses' home in search of the Williamses' daughter-in-law. Mrs. Williams told the agents that the woman they sought was not in her home. It was late at night, Williams was caring for her elderly and ill mother, and she denied the agents' request to enter the home. The agents attempted to enter the home by force, and Williams called the police. After the police arrived, agents forced their way into the home. The police officers on scene stood and watched and refused to assist Williams. The Williamses sued both C-U-Out and also the City of Overland Park, claiming the officers committed the tort of "negligent failure to protect." The district court granted the City's motion to dismiss, finding that the City was immune from liability under the Kansas Tort Claims Act and also finding that the City owed no duty to the Williamses. The Court of Appeals agreed that the City owed no duty to the Williamses. The panel also held that the City was immune under the discretionary function exception. The Kansas Supreme Court granted review.

ISSUES: (1) Sufficiency of facts to support illegal conduct, (2) existence of a duty, (3) discretionary function immunity

HELD:  The issue of whether C-U-Out's agents acted lawfully was, in part, a factual question. The Court of Appeals erred by disregarding factual allegations made in the Williamses' petition. Generally, law enforcement owes a duty only to the public at large. To succeed here, the Williamses had to prove that the City owed them a duty because of a special relationship or a specific circumstance. Although the existence of a duty is a question of law, where a duty is predicated on an affirmative act, there is a threshold factual question of whether the defendant's behavior could have triggered a duty. The district court erred by granting the motion to dismiss because of a lack of duty. The question of whether discretionary function immunity exists is high contextual. The district court erred by granting a motion to dismiss on these grounds.

STATUTES: K.S.A. 2018 Supp. 60-212(b)(6), 75-6104, -6104(e); K.S.A. 22-2809

 

Kansas Court of Appeals

CIVIL

JURY MISCONDUCT
KING V. CASEY'S GENERAL STORES, INC.
RICE DISTRICT COURT—AFFIRMED
NO. 120,241—OCTOBER 11, 2019

FACTS: King was injured after he slipped on some ice in a Casey's parking lot. He filed suit and the parties attempted to settle; when that was unsuccessful, the case proceeded to trial. During voir dire, panel member J.W. was asked whether he had any personal knowledge that would cause a problem for him if he was seated on the jury. J.W. said that he knew one of the witnesses—a Casey's employee—but said that wouldn't make him unable to be impartial when deciding the case. Another potential juror, R.W., was removed from the jury panel via peremptory strike because he knew King's family. The day after voir dire concluded, R.W. contacted King's attorney to tell her that one of the potential jurors told the panel that Casey's had offered to settle and that King should have accepted the offer. Further questioning revealed that the juror who brought up the settlement was J.W. King moved for a mistrial based on juror misconduct. After J.W. was questioned, the district court denied the motion but it did remove J.W. from the jury panel. The jury continued with 11 members and ultimately returned a verdict finding no fault by either party. King moved for a new trial based on juror misconduct, which was denied. King appealed.

ISSUE: (1) Whether J.W. tainted the jury

HELD: In most civil cases, a person asserting juror misconduct has the burden to prove that the misconduct occurred and that prejudice resulted. In this case, there was a factual dispute regarding how much J.W. knew about settlement proceedings and how extensively he shared that knowledge with other jurors. J.W.'s failure to volunteer information did not amount to prejudicial misconduct.

STATUTE: K.S.A. 2018 Supp. 60-259(a)

 

DUTY—NEGLIGENCE
MORGAN V. HEALING HANDS HOME HEALTH CARE, LLC
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 119,147—OCTOBER 11, 2019

FACTS: Morgan's son, Robert Cook, had "chronic, severe" paranoid schizophrenia and diabetes. His schizophrenia made him forgetful, which meant he had trouble remembering to take his medication. His doctors prescribed twice-daily home healthcare visits. Cook's health aides were supposed to evaluate his status, set up medications and remind Cook to take his pills, monitor his blood sugar, and draw labs as needed. Beginning in May of 2013, nurses noted that Cook's apartment was very warm. Some of Cook's medications made him unable to tolerate heat. The nurses counseled Cook on the temperature in his apartment and on his personal hygiene. Cook was unable or unwilling to follow their requests, and he continued to live in his apartment with no temperature control, resulting in him sweating and being warm. Medical logs noted that Cook's pulse was very rapid. In June 2013, Cook died of hyperthermia. Morgan brought a wrongful death and survival action against Healing Hands, claiming its negligence caused Cook's death. Healing Hands sought and received partial summary judgment on two issues: that it legally had no duty to alert Morgan to Cook's condition, and that Kansas' mandatory reporter statute did not require Healing Hands or its employees to report Cook's condition to law enforcement or state authorities. The remaining issues were tried to a jury, which found in Healing Hands's favor. Morgan appeals.

ISSUES: (1) Duty to warn and mandated reporter, (2) disputed issues of material fact, (3) jury instructions

HELD: The district court read the mandatory reporter statute too broadly. The statute did not require that Cook had previously been adjudicated incompetent or appointed a guardian or conservator before its obligations were triggered. There were fact questions on this issue that should have been heard by a jury. Evidence showed that while Cook lived independently, he required twice-daily nursing care to manage his physical and mental health. The mandatory reporter statutes created a duty of care, and the violation of these statutes may be used to establish a breach of that duty. The district court did not err when instructing the jury.

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

STATUTE: K.S.A. 39-1430(a), -1430(g), -1431, -1431(a), -1431(e), -1432(b)

Tags:  Author: Patti Van Slyke  duty  immunity  Johnson District Court  jury misconduct  law enforcement  negligence  Rice District Court  Sedgwick District Court 

Share |
PermalinkComments (0)
 

October 4, 2019 Digests

Posted By Administration, Tuesday, October 8, 2019

Kansas Supreme Court

Criminal

Appeals–Appellate Procedure—Constitutional law—evidence—fourth amendment—statutes
State v. Perkins
Ellis District Court—Affirmed
Court of Appeals—Affirmed
No. 112,449—October 4, 2019

FACTS: Perkins arrested for DUI. He filed motion to suppress results of breath test to which he had consented. District court denied the motion and convicted him on stipulated facts. Perkins appealed. Court of Appeals directed State to show cause why the matter should not be summarily reversed per State v. Nece, 303 Kan. 888 (2016)(Nece I), and State v. Nece, 306 Kan. 679 (2017)(Nece II). Reflecting the State’s redirected arguments, panel affirmed district court, finding the search incident to arrest exception to warrant requirement allows a warrantless breath test; and finding the good-faith exception applied in this case because officer acted with objectively reasonable reliance on statute that was later determined to be unconstitutional. State v. Perkins, 55 Kan.App.2d 372 (2018). Perkins’ petition for review granted.

ISSUES: (1) Preservation Exception; (2) Good-Faith Exception; (3) Search Incident to Arrest

HELD: State’s redirected arguments are considered. Panel’s request that State brief new arguments on appeal is akin to panel raising the issue sua sponte, and parties are to be afforded an opportunity to present their positions to the court. Nece is distinguished. 

District court’s refusal to suppress the result of breath test is affirmed. Good-faith exception to exclusionary rule would save evidence in this case even through Perkins’ consent to search was invalid. Case is analogous to State v. Daniel, 291 Kan. 490 (2010). Here, officer followed existing law and could not reasonably be expected to know that K.S.A. 2012 Supp. 8-1025 would later be found unconstitutional. While provisions that criminalized test refusal were unconstitutional, the entire implied consent statutory scheme was not invalidated. 

No need to discuss alternative argument about search incident to arrest exception.

CONCURRENCE (Luckert, J.): Agrees with application of good-faith exception. Also concurs with majority’s implicit application of U.S. Supreme Court caselaw to § 15 of Kansas Constitution Bill of Rights, but questions whether continued application should be in lockstep with federal caselaw. Open to reexamination of Daniel, but not in this case. Application by federal and state courts of Illinois v. Krull, 480 U.S. 340 (1987), warrants reconsideration of whether its exception leaves Kansas without the protection guaranteed by § 15.

STATUTES: K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B); K.S.A. 22-2501(c)

Kansas Court of Appeals

Civil

ADOPTION
IN RE ADOPTION OF C.S.
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 120,359 – OCTOBER 4, 2019

FACTS: Father and Mother started a relationship in early 2017. By spring of that year, Mother was pregnant. At the time, both she and Father were under age 18, although Father turned 18 about five months into the pregnancy. During her pregnancy, Mother spent a great deal of time with Father at his mother's home, where she received food and clothing, but never any monetary support. Mother claims that she spent so much time with Father because he wanted to control her, and there was evidence that Father was verbally abusive. In an effort to get away from him, Mother moved to Florida to live with extended family for the last part of her pregnancy. C.S. was born in December 2017 and moved to live with potential adoptive parents in March 2018. Mother waived her parental rights but Father would not, so the adoptive parents filed a motion seeking to terminate his parental rights for lack of support. The district court granted the motion and Father appealed.

ISSUES: (1) Evaluation of support given Father's age; (2) sufficiency of the evidence

HELD: The obligation to provide support begins at pregnancy, not birth. That support need not be complete but must be of consequence and reasonable under the circumstances. Father was 18 for most of the relevant look-back period where support was required. And there is no statutory distinction between parents who are minors and parents who are legal adults during the relevant time period where support must be provided. Further, Father does not get credit for support that his mother provided to Mother. The district court's decision to terminate Father's parental rights is supported by clear and convincing evidence.

STATUTES: K.S.A. 2018 Supp. 59-2136(h)(1)(D), -2136(h)(2)(A), -2136(h)(2)(B), -2136(h)(4)

Criminal

Constitutional law - criminal procedure - motions - sentences - statutes
State v. Gales
Edwards District Court—Affirmed
No. 119,302—October 4, 2019

FACTS: Gales convicted of intentional second-degree murder and arson. Sentencing criminal history score included a 1976 California juvenile burglary adjudication that was classified asa person felony. Convictions and sentence affirmed on direct appeal. Gales I (unpublished, rev. denied). Gales filed motion to correct an illegal sentence to challenge classification of the California adjudication. Relying on State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), Court of Appeals vacated Gales’ sentence and remanded to district court to make additional findings under Dickey to determine classification of the California adjudication as a person or nonperson offense. Gales II (unpublished). Thereafter, State v. Dickey, 305 Kan. 217 (2016)(DickeyII) extended Dickey I; State v. Wetrich, 307 Kan. 552 (2018), held that a prior out-of-state crime must have identical or narrower elements that the Kansas offense being compared; and Legislature amended K.S.A. 22-3504. Supplemental briefing ordered. 

ISSUE: (1) Illegal Sentence - Retroactivity and Application of Dickey

HELD: Gales entitled to constitutional rule in Apprendi because his conviction became final after Apprendi was announced. Gales does not get benefit of the identical-or-narrower definition of comparable offenses announced in Wetrich which constituted a change in the law. Under complicated facts in this case, district court’s process for deciding to classify the prior California crime as a person offense violated Apprendi but the decision is affirmed utilizing the classification process set forth in Dickey which does not constitute a change in the law as contemplated by the 2019 amendment to K.S.A. 22-3504.

STATUTES: K.S.A. 22-3504, -3504(c)(amended 2019); K.S.A. 2018 Supp. 21-6811(d), -6811(e)(3); K.S.A. 2015 Supp 21-6811(e)(3); K.S.A. 2000 Supp. 21-4711; K.S.A. 21-3715, -3715(a), -3715(b), -3715(c), -4711(d), -6811(e)(3), 22-3504, -3504(c)

appeals—constitutional law—criminal procedure—trials
State v. Williams
Graham District Court—Reversed and remanded
No. 120,099—October 4, 2019

FACTS: Under a deferred prosecution diversion agreement, State would dismiss felony charges if, in part, Williams paid $490 in costs and fees within one year. After 11 months of nonpayment, State moved to rescind the agreement. District court granted the motion and immediately found Williams guilty as charged based on fact stipulations in the diversion agreement. Williams appealed.

ISSUES: (1) Diversion Agreement; (2) Waiver of Right to Jury Trial

HELD: District court’s revocation of the diversion agreement, based on Williams’ admitted lack of payments, was not error.

Issue is reviewed for first time on appeal to prevent denial of a fundamental right. A district court’s failure to comply with requirement to advise a defendant of right to a jury trial on the record requires reversal and remand. Here, no written waiver and the record does not show the district court ever advised Williams about his right to a jury trial. Reversed and remanded to either afford Williams his constitutional right to a trial by jury based on stipulated facts or to allow him to execute a valid waiver of a jury trial.

STATUTE: K.S.A. 22-2911, -3403(1)

Tags:  Edwards District Court  Ellis District Court  Graham District Court  Shawnee District Court 

Share |
PermalinkComments (0)
 
Page 4 of 18
1  |  2  |  3  |  4  |  5  |  6  |  7  |  8  |  9  >   >>   >|