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August 3, 2018 Digests

Posted By Administration, Tuesday, August 7, 2018

Kansas Court of Appeals

Civil

ATTORNEY AND CLIENT—HABEAS CORPUS
ROBINSON V. STATE
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 116,483—AUGUST 3, 2018

FACTS: Robinson was convicted of reckless second-degree murder and aggravated arson after he started a house fire which resulted in the death of an occupant. Those convictions were affirmed on direct appeal. Robinson then filed a motion for habeas corpus relief in which he alleged that he was prejudiced by the ineffective assistance of trial counsel. After an extensive evidentiary hearing, the district court found that trial counsel was ineffective for failing to investigate and present expert testimony that would counter the State's expert witness. Finding that Robinson was prejudiced by these errors and the cumulative damage they did, the court ordered a new trial for Robinson. The State appeals that finding. Robinson cross-appealed the district court's denial of other arguments.

ISSUES: (1) Expert witness testimony; (2) cross-appeal

HELD: Although expert testimony about causation can be crucial in an arson case, defense counsel did not consult with an arson expert. He spoke with one witness less than two weeks before trial. Evidence presented at the habeas corpus hearing showed that expert testimony could have poked significant holes in the State's case. Trial counsel's failure to obtain assistance from an expert resulted in a less than complete investigation and provided prejudicially ineffective assistance to Robinson. None of the issues raised by Robinson in his cross-appeal independently require a new trial.

STATUTES: No statutes cited.

REMEDY—WORKERS COMPENSATION
JOHNSON V U.S. FOOD SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 117,725—AUGUST 3, 2018

FACTS: Johnson was injured while performing his job as a truck driver. After surgery, Johnson was returned to work but he was still experiencing symptoms. Johnson's surgeon used the Sixth Edition of the AMA guides when assigning Johnson a permanent impairment rating of 6% of the whole person. The surgeon noted that under the Fourth Edition of that Guide, Johnson would have received a 25% impairment rating, which the doctor believed was more accurate. The Board affirmed the 6% impairment rating, but neither the ALJ nor the Board had the authority to address Johnson's claim that use of the Sixth Edition was unconstitutional on its face. He now raises that issue on appeal.

ISSUES: (1) Facial constitutionality of K.S.A. 2015 Supp. 44-510e

HELD: Kansans have a constitutional right to remedy. The workers compensation statutes allow injured workers to trade certain benefits for the common law right to sue. But this quid pro quo is constitutional only if the certain benefits are adequate. The legislature's adoption of the Sixth Edition resulted in a system that no longer provides an adequate remedy. In the absence of any scientific reason to adopt the Sixth Edition, the use of that Guide results in an unconstitutional system. The appropriate remedy is to reinstate the Fourth Edition. This case must be remanded for recalculation using that Guide.

STATUTES: Kansas Constitution Bill of Rights, § 18; K.S.A. 2015 Supp. 44-510c(a)(1), -510c(a)(2), -510c(c), -510d(b)(23), -510d(b)(24), -510e, -510e(a)(2)(B), -510e(a)(2)(C), -510h; K.S.A. 44-574(b)

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July 27, 2018 Digests

Posted By Administration, Monday, July 30, 2018

Kansas Supreme Court

Civil

 

REAL PROPERTY—STATUTE OF LIMITATIONS
LCL V. FALEN
RICE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED, CASE REMANDED
 No. 115,434—JULY 27, 2018

FACTS: The Mary Louise Falen-Olsen Trust entered a contract to sell 200 acres of real property to Sammy Dean. The Trust owned all of the surface rights plus an undivided one-half mineral interest. It is undisputed that the Trust intended to sell the surface rights and retain the mineral interest. RCAT was the closing agent and title insurer. The deed prepared by RCAT did not include any reference to the mineral reservation. Neither of the co-trustees noticed this omission before they signed and filed the deed. LCL purchased the property in April 2014. At the time, LCL acknowledged that the mineral rights would not come with the property. RCAT again acted as the closing agent, and the deed again did not note the Trust's mineral rights reservation. After the sale closed, LCL inquired about the difference between the deed's language and its understanding of what it purchased. RCAT conducted a title search and discovered that none of the deeds included the reservation of the Trust's mineral interest. LCL refused to sign a corrected deed. The Trust first learned of this in August 2014, when royalty payments were suspended. LCL filed a petition to quiet title to the mineral interests. The Falens both filed an answer denying LCL's ownership and filed a third-party petition against RCAT for negligence and breach of contract. RCAT moved for summary judgment, claiming that the statute of limitations began to run in January 2008, when the original deed was prepared. The district court granted that motion, but that decision was reversed by the court of appeals, which found that the Falens did not sustain any damage until August 2014, when the royalty payments stopped. RCAT's petition for review was granted.

ISSUES: (1) Negligence cause of action; (2) breach of fiduciary duty cause of action

HELD: In the context of a statute of limitations, "substantial injury" means "actionable injury". There are two inquiries relevant to determining when the statute of limitations began to run – when did the Falens suffer actionable injury, and when did the existence of that injury become reasonably ascertainable? They were injured when the 2008 deed was filed because their mineral interest title became clouded. This injury was compounded in 2013, when their ability to reform the title became much more limited. But there remains a genuine issue of material fact about whether the Falens reviewed or understood the deed before signing and filing it. And factual questions remain about the Falens' continued receipt of royalty payments. Because of these factual disputes, summary judgment was inappropriate and the case must be remanded for further factfinding. The Falens' breach of fiduciary duty claims extended to the 2014 deed, meaning that the petition was filed well within the statute of limitations.

STATUTE: K.S.A. 58-2222, 60-511(5), -513(a)(4), -513(b)

 

DUE PROCESS—HABEAS CORPUS
IN RE HABEAS CORPUS BY SNYDER
ORIGINAL ACTION—WRIT DENIED
NO. 117,167—JULY 27, 2018

FACTS: Clay Snyder was charged with several off-grid felonies in 2012. He was found not competent to stand trial because of an intellectual disability in 2013; Snyder has microcephaly. That finding has renewed on multiple occasions, most recently in 2016. Snyder was involuntarily committed for the first time in 2014. Medical personnel have testified that it is unlikely that Snyder will ever be competent to stand trial. Snyder petitioned for original habeas relief, asking that he be released from confinement because of violations to his speedy trial, due process, and equal protection rights.

ISSUES: (1) Speedy trial; (2) due process; (3) equal protection

HELD: The speedy trial clock for Snyder's criminal trial remains suspended because Snyder is not competent to stand trial. Although Snyder maintains the right to a speedy trial, he cannot be constitutionally tried until he is competent. The competency statutes in Kansas provide deadlines that suggest a reasonable time to attempt to restore a defendant's competency. The state complied, and then used a lawful civil commitment procedure to justify his continued restraint. Compliance with statutory procedures must be strict, and delay could serve as the basis for a constitutional claim. Snyder's equal protection argument was not adequately briefed and is thus deemed abandoned.

STATUTE: K.S.A. 2017 Supp. 22-3302(4), -3303, -3303(1), 60-1501

 

INVOLUNTARY COMMITMENT
IN RE CARE AND TREATMENT OF SNYDER
PAWNEE DISTRICT COURT—AFFIRMED
NO. 117,512—JULY 27, 2018

FACTS: In 2012, Snyder was charged with multiple sex offenses. He asked a judge to determine his competency to stand trial. He was found not competent, and those findings have persisted. In 2016, the district court found that Snyder was not competent and that there was no substantial probability that he would obtain competency in the foreseeable future. Consequently, the Kansas Department of Aging and Disability Services commenced involuntary commitment proceedings against Snyder. The district court held a bench trial and heard evidence that Snyder was intellectually disabled and dangerous to others, which warranted further treatment. The district court determined that Snyder met the criteria for involuntary commitment, and he appealed. The case was transferred to the Kansas Supreme Court on its own motion.

ISSUES: (1) Equal protection; (2) due process; (3) sufficiency

HELD: The Care and Treatment Act provides for the involuntary commitment of certain mentally ill persons. It excludes from civil commitment a mentally ill person who is diagnosed solely with an intellectual disability. But a person with an intellectual disability may be involuntarily committed if that person has been accused of an off-grid felony and found incompetent to stand trial. The state has a rational basis to treat potentially dangerous individuals differently, negating Snyder's equal protection argument. Snyder was given due process because the state was required to prove not only that he was charged with an off-grid felony but that he was likely to cause harm to self and others. There is no constitutional bar to the state civilly committing an individual whose mental condition cannot be cured. There was sufficient evidence presented to show that Snyder is likely to cause harm to himself or to others.

STATUTE: K.S.A. 2017 Supp. 22-3303, -3303(1), 59-2946(e), -2946(f)(1), -2946(f)(3), -2966(a)

 

Criminal

 

POLICE POWERS—SEARCH AND SEIZURE
IN RE J.O.
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 116,954—JULY 27, 2018

FACTS: In 2015, the Prairie Village Police Department arranged for controlled drug buys in Shawnee, Kansas. On two occasions, a confidential informant was sent to buy drugs from J.O. in Shawnee. There were no Shawnee officers present at either buy and the Shawnee Police Department never provided assistance. After the buys, J.O. was charged with multiple drug offenses. J.O. moved to suppress all evidence obtained from the controlled buys on grounds that PVPD had no jurisdiction to operate in Shawnee. The district court agreed that PVPD exceeded its jurisdiction by operating in Shawnee. But the motion to suppress was denied because J.O. had a voluntary encounter with the CI and was neither searched nor seized by PVPD officers. The district court admonished the PVPD to respect its jurisdictional boundaries and warned of potential recriminations if those boundaries were not followed. J.O. appealed, and the court of appeals agreed with the district court that the exclusionary rule was not an appropriate remedy for this case. The petition for review was granted.

ISSUE: (1) Application of exclusionary rule

HELD: Statutory limits exist to protect the local autonomy of neighboring cities and not to protect citizens from encroachment by law enforcement. The court of appeals erred when it found that the PVPD properly requested assistance. The PVPD's continued failure to follow K.S.A. 2017 Supp. 22-2401a is troubling. But in the absence of an individual right, J.O. cannot claim any injury that would justify suppression.

STATUTES: K.S.A. 2017 Supp. 22-2401a(2); K.S.A. 2016 Supp. 22-2401a; K.S.A. 22-3216

 

constitutional law—criminal law—traffic stop
state v. glover
douglas district court—affirmed
court of appeals—reversed
No. 116,446 - july 27, 2018

FACTS: Officer stopped a vehicle assuming the driver was the registered owner (Glover) whose driver’s license had been revoked. No other information supported this assumption, and the officer did not try to confirm the driver’s identity before initiating the traffic stop. Glover was in fact the driver. State charged him with driving as a habitual violator. He filed motion to suppress evidence obtained during the stop, arguing the officer lacked a reasonable suspicion of illegal activity when he stopped the car. District court granted the motion on stipulated facts, finding the officer’s assumption was unreasonable. State filed interlocutory appeal. Court of Appeals reversed, 54 Kan. App.2d 377 (2017). Review granted. 

ISSUE: Reasonable suspicion for vehicle stop

HELD: Officer lacked an articulable and reasonable suspicion that the unidentified driver did not have a valid driver’s license. Officer’s assumption was only a hunch unsupported by a particularized and objective belief. Opinion reviews general principles about reasonable searches and seizures, the distinction between assumptions and inferences, and reasons for rejecting the owner-is-the-driver presumption. State has burden to prove the officer had reasonable suspicion that the driver of the vehicle—not just the registered owner—had a suspended driver’s license. To draw inferences in favor of the State based on lack of evidence in the record impermissibly relieves State of its burden. Court of appeals is reversed. District court’s judgment is affirmed. 

STATUTE: K.S.A. 20-3018(b)

 

competency—criminal procedure—evidence—juries
state v. Jenkins
saline district court—affirmed
No. 106,741—july 27, 2018

FACTS: Jenkins, Parker, and two others burglarized two apartments and killed one resident.  Jenkins was convicted of first-degree murder, aggravated burglary, and theft. For threats and actions thereafter against his wife and son, Jenkins also was convicted of criminal threat, domestic battery, and criminal restraint. Jenkins appealed. Some nine months later, prosecutor reported that a juror sent her gifts which the prosecutor returned, and some two months later the same juror sent the prosecutor a holiday greeting. District court conducted a hearing each time, finding no juror misconduct had influenced the jury’s verdict. Jenkins also sought resolution of his pretrial motion for a competency hearing. Case was remanded to district court which found a retrospective competency determination was feasible and that Jenkins had been competent at time of his trial. On appeal Jenkins claimed: (1) insufficient evidence supported his convictions of first-degree murder, aggravated burglary, and theft; (2) district court erred in finding no evidence of juror misconduct; and (3) district court erred in concluding a retrospective competency hearing was feasible. 

ISSUES: (1) Sufficiency of the evidence, (2) juror misconduct, (3) retrospective competency hearing

HELD: Under facts of case, the evidence viewed in light most favorable to the State was sufficient to establish that Jenkins aided or abetted others in committing the aggravated burglaries and theft, and that Parker shot and killed the fatality victim during the aggravated burglary of that victim’s apartment. 

            No abuse of district court’s discretion in finding no juror misconduct had occurred.  Juror did not contact prosecutor until well after trial had ended, and juror had based his verdict on the evidence. No need to consider whether the alleged juror misconduct created a fundamental failure in the proceeding.

            Factors in McGregor v. Gibson, 248 F.3d 946 (10th Cir.2001), are applied to determine if it is feasible to retrospectively determine a defendant’s competency. Here, three McGregor factors are discussed with factual comparison to State v. Ford, 302 Kan. 455 (2015), and State v. Murray, 302 Kan. 478 (2015). All three factors support the district court’s ruling that a retrospective competency determination on Jenkins’ competency at the time of trial was feasible. 

STATUTES: K.S.A. 2017 Supp. 21-5402(a), -5402(c)(1)(J), -5801, -5807(b); K.S.A. 21-3205, 22-3302

 

appellate procedure—constitutional law—criminal law—search and seizure
state v. ton
johnson district court—affirmed
court of appeals—affirmed
No. 113,220—july 27, 2018

FACTS:  Using a confidential informant tip, supporting information, and drug dog alert, officer obtained search warrants to open a UPS package and to search a residence once the resealed  package was delivered hours after the scheduled delivery time. Marijuana discovered in the package and the residence led to Ton’s conviction for possession of marijuana with intent to sell and failure to pay Kansas drug tax stamp. Ton filed motion to suppress, arguing the officers lacked a reasonable suspicion to detain the package past the scheduled delivery time.  District court denied the motion, finding the package was not seized until police removed it from the UPS facility after the scheduled delivery time, and there was reasonable suspicion to seize the package. Ton appealed the reasonable suspicion ruling, and also argued the package was detained for an unreasonable length of time. Court of appeals affirmed in unpublished opinion, concluding the police had reasonable suspicion of criminal activity that justified seizing Ton’s package, and did not reach question of whether reasonable suspicion was required or not. Panel declined to address Ton’s unreasonable-length-of-time claim which was presented for first time on appeal. Ton’s petition for review granted.

ISSUES: (1) Reasonable suspicion, (2) preservation of length of time issue

HELD: No error found in panel’s analysis. Government had reasonable suspicion to seize the package, whether reasonable suspicion was needed or not.
            Ton affirmatively narrowed the scope of his Fourth Amendment claim in the suppression hearing to an argument that reasonable suspicion did not support seizure of the package. Record on appeal thus lacks findings Ton needs to support argument about the detention being an unreasonable amount of time. Panel’s decision to not address the merits of this additional argument is upheld.  

STATUTES:  None

 

Kansas Court of Appeals

Civil

ATTORNEY AND CLIENT—INTENT
CALHOUN V. STATE
SEDGWICK DISTRICT COURT—AFFIRMED IN PART
REVERSED IN PART—REMANDED
NO. 117,704—JULY 27, 2018

FACTS: Calhoun was convicted of multiple high-level felonies. The jury was instructed that it could convict Calhoun if it believed Calhoun was either the principal or an aider or abettor. The jury instruction on aiding and abetting allowed the jury to find Calhoun guilty if it believed that the crimes were a "reasonably foreseeable" consequence of the intended crime. At trial, Calhoun admitted that he participated in the robbery but denied committing any of the violent crimes with which he was charged. After Calhoun was convicted of some, but not all, of the charges he faced, two jurors came forward with reports of a compromise verdict. Calhoun's motion for a new trial was denied. Calhoun's convictions were affirmed on direct appeal and his petition for review was denied. Calhoun then filed a timely K.S.A. 60-1507 motion which argued, in part, that both trial and appellate counsel were ineffective for failing to argue that the jury instruction on aiding and abetting was inappropriate. The motion was denied and this appeal followed.

ISSUES: (1) Trial errors; (2) aiding and abetting jury instruction

HELD: K.S.A. 60-1507 can be used to correct trial errors only if exceptional circumstances exist. Calhoun never argued the existence of exceptional circumstances, and the court will not consider allegations of trial error in this proceeding. The aiding and abetting instruction given to the jury allowed for a guilty finding if the jury believed that any of the crimes with which Calhoun was charged were reasonably foreseeable consequences of the intended crime of aggravated robbery. Supreme Court precedent establishes that this jury instruction is not appropriate for defendants, such as Calhoun, charged with specific intent crimes. Trial counsel was ineffective for failing to object to this instruction, and appellate counsel was ineffective for failing to raise this issue on direct appeal. The jurors' comments about their confusion shows that the jury was improperly influenced by the inappropriate instruction. For this reason, Calhoun's convictions for aggravated kidnapping, attempted voluntary manslaughter, and criminal threat are reversed based on ineffective assistance of counsel.

STATUTE: K.S.A. 21-3205, 60-1507 

Tags:  intent  police powers  search and seizures  trial errors 

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July 20, 2018 Digests

Posted By Administration, Tuesday, July 24, 2018

Kansas Court of Appeals

civil

constitutional law—juvenile justice code—interrogation—statutes
in re. P.W.G.
butler district court—affirmed
No. 118,211—july 20, 2018

FACTS: Thirteen-year-old P.W.G. was questioned at police station about allegations of fondling his younger step-brother. Father of both boys brought P.W.G. to police station as directed, and remained with P.W.G. during questioning. P.W.G. eventually made incriminating statements after they both signed waiver of Miranda rights. State charged P.W.G. with aggravated indecent liberties with a child. District court granted P.W.G.’s motion to suppress statements made during interrogation, finding the police interrogation was custodial and that the Miranda waiver was invalid under K.S.A. 2017 Supp. 38-2333(b). State filed interlocutory appeal arguing the statute did not apply because the interrogation was not custodial, and even if custodial, the presence of P.W.G.’s father when P.W.G. waived his Miranda rights satisfied the statute.

ISSUES:  (1) Custodial interrogation of juvenile. (2) voluntariness of Miranda Waiver

HELD:  Although a close call, under totality of the circumstances as set forth in the opinion, a 13-year-old child would not have felt free to terminate the interrogation and leave. District court’s finding that the interrogation was custodial is affirmed.

            P.W.G. did not voluntarily and knowingly waive his Miranda rights under the requirements set forth in K.S.A. 2017 Supp. 38-2333.  Interrogating officer in this case did not provide any time for father to consult, provide an explanation, or give guidance to P.W.G.  State failed to comply with K.S.A. 2017 Supp. 38-2333(a), thus the totality of the circumstances test is not sufficient to ensure that P.W.G.’s waiver was intelligent and knowing.  More than the mere presence of a parent is required; the parent must be acting with the interests of the juvenile in mind.  While statute does not govern unique facts presented here, P.W.G.’s waiver would be invalid because the father of both the alleged victim and the alleged perpetrator had an irreconcilable conflict of interest.  Better practice would have been contacting P.W.G’s mother who was not related to the alleged victim.  District court’s finding that P.W.G.’s waiver of his Miranda rights was invalid under K.S.A. 2017 Supp. 38-2333 is affirmed.

DISSENT (Buser, J.):  Does not agree that the officer conducted a custodial interrogation of P.W.G., thus K.S.A. 2017 Supp. 38-2333(a)-(b) are not applicable to facts and circumstances of this case.  Instead, the officer’s questioning was an investigative interview for which a valid waiver of Miranda rights was not required.   Factors to be considered in analyzing whether the interrogation was custodial are detailed, criticizing majority’s findings on seven of the eight factors.  Would reverse the district court’s order of suppression and remand for further proceedings.

STATUTES:  K.S.A. 2017 Supp. 38-2333, -2333(a), -2333(b); K.S.A. 74-7833 et seq.

 

criminal

criminal law—criminal procedure—immunity—statutes
state v. collins
sedgwick district court—reversed and remanded
No. 117,743—july 20, 2018

FACTS: Three unarmed women followed Collins up an apartment stairwell following an earlier heated encounter in the parking lot. When Collins brandished a knife at the top of the second floor landing, he and the women fell down nine stairs after one pulled on Collins’ shirt, with Collins swinging the knife at least twice as he fell. Collins got up, closed his knife, and went back up the stairs to his apartment, but one woman had been fatally stabbed and another had a knife wound. State charged Collins with intentional second-degree murder and aggravated battery. Prior to trial, Collins filed a motion seeking self-defense immunity under the Stand Your Ground statute. District court conducted an evidentiary hearing and found Collins’ use of deadly force was lawful because Collins reasonably believed deadly force was necessary to prevent great bodily harm to himself. District court granted the motion and dismissed the charges. State appealed, arguing Collins lacked a reasonable belief that deadly force was needed to prevent great bodily harm, and that as an aggressor, he was not subject to a statutory safe harbor retreat exception.

ISSUE:  Stand Your Ground Statute, K.S.A. 2017 Supp. 21-5220 et seq.

HELD:  Background of the Stand Your Ground statute is reviewed, including immunity under K.S.A. 2017 Supp. 21-5231 that prevents a case from going to trial. Here, the district court was not required to decide whether Collins was justified in his use of deadly force in self-defense. Instead, to overcome a defendant’s self-defense immunity claim, State has burden of establishing probable cause the defendant’s use of force was not statutorily justified. That probable cause burden can be met by evidence the defendant acted as an aggressor and provoked the use of force. Under facts in this case, State met its burden because a reasonable person—given the district court’s assessment of conflicting evidence—could have concluded Collins’ acts were not justified. Thus Collins is not entitled to immunity, and his claim of self-defense is appropriately left for a jury to decide. District court’s grant of immunity and dismissal of the charges is reversed, and case is remanded for further proceedings. 

STATUTES:  K.S.A. 2017 Supp. 21-5220 et seq., -5221, -5222, -5223, -5224(a)(2), -5225, -5226(c), -5230, -5231; K.S.A. 2015 Supp. 21-5403(a)(1), -5413(b)(2)(B)

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July 13, 2018 Digest

Posted By Administration, Monday, July 16, 2018

Kansas Supreme Court

 

Attorney Discipline

 

ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF JARED WARREN HOLSTE
NO. 113,970—JULY 12, 2018

FACTS: Holste was placed on a two-year suspension in October 2015. Holste was told that he could apply for reinstatement after six months, subject to terms and conditions. Holste requested and received an early reinstatement in 2016. He was allowed to return to practice subject to an 18-month term of probation. In June 2018, Holste requested that he be discharged from probation. The disciplinary administrator did not object to the request.

HELD: In the absence of an objection, Holste's motion was granted. He was discharged from probation.

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July 6, 2018 Digests

Posted By Administration, Monday, July 9, 2018

Kansas Supreme Court

Civil

 

HABEAS CORPUS—STATUTES
WHITE V. STATE
BUTLER DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED—CASE IS REMANDED
NO. 114,284—JULY 6, 2018

FACTS: White pleaded no contest to a person felony and received the presumptive sentence. This sentence was summarily affirmed by the Court of Appeals, and the judgment became final on February 12, 2013. White filed a K.S.A. 60-1507 motion more than two years later, beyond the one-year time limit. White acknowledged his tardiness and asked the district court to allow an out-of-time filing because of manifest injustice – his appellate counsel failed to provide him with a copy of the mandate which finalized his direct appeal. The district court found that White failed to sustain his burden to prove manifest injustice, and the Court of Appeals agreed. White's petition for review was granted.

ISSUES: (1) Retroactivity of K.S.A. 2017 Supp. 60-1507; (2) existence of manifest injustice

HELD: K.S.A. 60-1507 was amended after the Court of Appeals' opinion for this case. The amendments limit a court's ability to find manifest injustice. These amendments do not apply retroactively, as doing so would limit litigants' ability to raise a vested defense and cause manifest injustice.  White's claims must be reviewed by using all of the Vontress factors. White presented credible evidence that he never received the Court of Appeals mandate, and criminal defendants should be able to rely on counsel to protect legal interests. If true, it could serve as a basis for manifest injustice. But the record is underdeveloped, and the case must be remanded for further proceedings related to White's credibility.

CONCURRENCE AND DISSENT: (Johnson, J.) White meets either the Vontress test or the new statutory test and meets his burden to prove manifest injustice. The case should be remanded to the district court for a hearing.

STATUTES: K.S.A. 2017 Supp. 60-1507; K.S.A. 60-1507, -1507(f)

 

Criminal

 

SEARCH AND SEIZURE—STANDING
STATE V. DANNEBOHM
BARTON DISTRICT COURT—COURT OF APPEALS IS REVERSED
CASE REMANDED TO COURT OF APPEALS
NO. 116,981—JULY 9, 2018

FACTS: Law enforcement was searching for Dannebohm in an attempt to serve an arrest warrant. They received a tip that Dannebohm was at Alexis Tracy's apartment. Tracy consented to a search of her residence, and officers found evidence of drug use and a safe, that Tracy said belonged to Dannebohm. After a drug dog alerted to the safe, officers took it back to an evidence locker and received a warrant. A search revealed methamphetamine as well as Dannebohm's personal papers. Dannebohm was charged with drug offenses. Prior to trial, he moved to suppress evidence of the search. The State objected, claiming that Dannebohm had no standing to object because he had no reasonable expectation of privacy in Tracy's apartment. The district court ultimately agreed with Dannebohm and suppressed the evidence of the search. The Court of Appeals reversed, finding that Dannebohm lacked standing because he was not a guest in the apartment at the time of the search. Dannebohm's petition for review was granted.

ISSUES: (1) Standing

HELD: Dannebohm had a close, long-standing relationship with Tracy and a connection to her apartment as a welcomed guest. This connection extended even though Dannebohm was not physically present at the time of the search, giving him a reasonable expectation of privacy at the residence. The case must be remanded for further proceedings.

STATUTES: No statutes cited.

 

SEARCH AND SEIZURE
STATE V. TORRES
LYON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 114,269—JULY 5, 2018

FACTS: After using his cell phone to make the arrangements, Torres was arrested after he conducted a drug deal with a confidential informant. After the deal was done, officers watched Torres enter an apartment. He only stayed for a few minutes, then left in a car. Law enforcement initiated a traffic stop. A plain-view examination of the car revealed cash, which was verified as money involved in the drug buy. Torres was arrested and later convicted of distribution of methamphetamine and unlawful use of a communication device. The Court of Appeals affirmed his conviction and Torres' petition for review was granted.

ISSUES: (1) Motion to suppress; (2) sufficiency of the evidence

HELD: Under Gant, the search of Torres' car was lawful because the officer had a reasonable basis to believe the car contained evidence of Torres' crime. The search was allowable as incident to a lawful arrest. Torres' complaint about sufficiency is really about venue. The confidential informant's location was known when he initiated a call with Torres, and the drug deal occurred within the county where charged were filed.

STATUTE: K.S.A. 2017 Supp. 21-5705(a)(1)

 

CAUSATION
STATE V. WILSON
RILEY DISTRICT COURT—AFFIRMED
NO. 115,435—JULY 6, 2018

FACTS: Wilson met his apartment neighbors in a hallway and started shooting. He then shot his way in to the apartment across the hall. A resident of that apartment got his own handgun, then mistakenly shot and killed his roommate after assuming he was Wilson. Wilson was charged with first-degree murder for that death. He pled no contest and his sentence was affirmed on direct appeal. Wilson later moved to withdraw his no contest plea. That motion was summarily denied and Wilson appealed.

ISSUES: (1) Factual basis for plea

HELD: Because Wilson moved to withdraw his plea post-sentence, the manifest injustice standard applies. In order to succeed on appeal, Wilson must prove that there was no factual basis for the plea. The question is not whether Wilson shot the victim, but whether Wilson's actions caused the victim's death. Here, Wilson was criminally liable for that death unless an unforeseeable event superseded his act and became the sole cause of death. That is not the case here. The second shot from the apartment dweller was completely foreseeable, rendering Wilson criminally liable for the death.

STATUTES: K.S.A. 2017 Supp. 22-3210(a)(4), -3210(d)(2); K.S.A. 2012 Supp. 21-5402(a)(1)

 

Kansas Court of Appeals

Civil

 

FORECLOSURE
REVERSE MORTGAGE SOLUTIONS V. GOLDWYN
RILEY DISTRICT COURT—AFFIRMED
NO. 118,370—JULY 6, 2018

FACTS: Goldwyn's mother took out a reverse mortgage in 2007. The reverse mortgage allowed Goldwyn's mother to use her home as collateral and take out loans up to the value of the home. After the mother's death, Goldwyn became the homeowner. But the reverse mortgage lender opted to make the balance due. Goldwyn did not pay that balance, and the lender initiated a foreclosure judgment. The suit was an in rem action against the property, and Goldwyn had no liability to cover an arrearage with her other assets. A prior appeal confirmed the propriety of the foreclosure judgment. Goldwyn now appeals the district court's approval of the sheriff's sale.

ISSUES: (1) Amount of the sheriff's sale; (2) timing of the sheriff's sale; (3) length of redemption period; (4) process of approval

HELD: The bid made at the sheriff's sale was not substantially inadequate, as it came at 86% of the total judgment. Due to the in rem nature of the proceedings, there was no deficiency judgment; because of this, district courts may have more leeway to approve the sheriff's sale in a reverse mortgage action. The district court should have waited to allow a response to the motion to confirm the sheriff's sale. But the error was harmless, especially because the district court eventually held a hearing on Goldwyn's motion to reconsider. The redemption period was properly set at three months by statute. The foreclosure notice was properly published in the correct newspaper.

STATUTES: K.S.A. 2017 Supp. 60-205(a)(1)(D), -261, -2414(a), -2414(m); K.S.A. 60-2410(a), -2415, -2415(a), -2415(b)

 

CONSENT—DUI—EVIDENCE
FORREST V. KANSAS DEPARTMENT OF REVENUE
RUSSELL DISTRICT COURT—REVERSED AND REMANDED
NO. 118,154—JULY 6, 2018

FACTS: Law enforcement came upon Forrest's vehicle stopped in the middle of the road. Continued monitoring revealed Forrest committing several more traffic infractions. After he was stopped, Forrest voluntarily exited his vehicle. Law enforcement immediately smelled alcohol and noted slurred speech. A cursory look at Forrest's vehicle showed an open beer can. Forrest performed poorly on the field sobriety tests, but he initially refused to submit to a PMT. Forrest eventually complied, and the results showed that he was intoxicated. As a result, his driver's license was suspended. After Forrest filed a petition for judicial review, the district court determined that law enforcement only observed one minor traffic violation and that Forrest's knee problems explained his poor performance on the field sobriety tests. After finding that law enforcement lacked reasonable grounds to ask for a breath test, the district court reversed the suspension of Forrest's driver's license. The Department of Revenue appealed.

ISSUES: (1) Reasonable grounds to request a breath test

HELD: The record shows that law enforcement watched Forrest commit multiple traffic infractions. His breath smelled of alcohol, he had slurred speech, he admitted to consuming alcohol, there was an open beer can in the car, and he performed poorly on the field sobriety tests. In ruling that the officer lacked reasonable grounds to request a breath test, the district court improperly ignored substantial uncontroverted evidence supporting such a request. The district court erred and the case must be remanded for further proceedings.

STATUTE: K.S.A. 2017 Supp. 8-259(a), -1001(a), -1001(b), 77-621(a)(1)

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June 25 and June 29, 2018 Digests

Posted By Administration, Monday, July 2, 2018

 Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF L.J. BUCKNER, JR.
NO. 118,663—JUNE 29, 2018

FACTS: A hearing panel determined that Buckner violated KRPC 1.4(b) (communication); 1.5(d) (fees); 1.15(a), (b), (c), (d)(1)(ii), (d)(3), and (f) (safekeeping property); 1.16(d) (termination of representation); 8.1(b) (failure to respond to demand for information); and Supreme Court Rule 207(b) (failure to cooperate in a disciplinary investigation). The complaint arose after Buckner represented clients using a flat monthly fee structure. The fee agreement also contemplated a "success fee", which gave to Buckner a portion of the client's recovery. After representation was concluded, Buckner failed to advance settlement proceeds to his clients. The clients attempted to initiate fee dispute proceedings through a bar association, but Buckner refused to participate. After failing to get recourse, the clients filed a complaint with the disciplinary administrator's office. Buckner did not respond as directed and did not participate in the investigation as required. When he eventually did speak with the disciplinary administrator's office, Buckner indicated that he believed his fee agreement allowed him to keep all of the settlement proceeds.

HEARING PANEL: The hearing panel believed that Buckner's testimony during the hearing was inconsistent with other evidence. The panel concluded that Buckner was required to disburse some of the settlement proceeds to his clients. Evidence showed that Buckner had inaccurate and incomplete billing practices. After considering the evidence, the hearing panel concluded that Buckner violated a number of rules but found the evidence lacking to support a violation of KRPC 8.4. The disciplinary administrator's office recommended sanction of disbarment. The hearing panel recommended a two-year suspension.

HELD: The hearing panel erred by finding that Buckner did not violate KRPC 8.4(c). The record supports a conclusion that Buckner was dishonest with his clients. The hearing panel also erred by finding that Buckner's actions were knowing. The evidence proves they were intentional. Given those facts, a majority of the court agrees with the disciplinary administrator that disbarment is the appropriate discipline. A minority of the court would have imposed discipline of indefinite suspension.

 

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF JOHN BERNARD SULLIVAN
NO. 118,723—JUNE 29, 2018

FACTS: A hearing panel determined that Sullivan violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.8(f) (accepting compensation for representation from someone other than the client); 1.16(a)(2) (declining and terminating representation; 1.16(d) (terminating representation); 8.4(b) (commission of a criminal act reflecting on the attorney's veracity); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Supreme Court Rule 203(c)(1) (failure to timely report felony charges); and Supreme Court Rule 211(b) (failure to file a timely answer in a disciplinary proceeding). Sullivan's Kansas license was suspended in February 2014. There were several incidents which precipitated the complaint. Sullivan failed to properly docket an appeal in federal court, resulting in his client being unable to obtain relief from a criminal sentence. Sullivan was also charged with multiple counts of drug possession, stemming from multiple incidents.

HEARING PANEL: The panel noted that there were multiple aggravating factors, including the large number of violations. But the panel also noted the absence of a selfish or dishonest motive and could clearly conclude that part of Sullivan's conduct was caused by his drug addiction. Sullivan made restitution to clients to the best of his ability, sought drug treatment and counseling, and fully cooperated with the disciplinary process. The disciplinary administrator asked that Sullivan be disbarred. Sullivan asked that his suspension be continued so that he could, in the future, petition for reinstatement. Because Sullivan showed great progress in recovery and cooperated with the investigation, the hearing panel recommended an indefinite suspension.

HELD: At the hearing before the court, the disciplinary administrator noted Sullivan's progress and asked that the court adopt the recommendation of indefinite suspension, with criteria for reinstatement including discharge from probation and continued evidence of sobriety. The court agreed and imposed discipline of indefinite suspension, beginning on the date of this opinion.

 

Civil

SCHOOL FINANCE
GANNON V. STATE
SHAWNEE DISTRICT COURT—ADEQUACY REVERSED—EQUITY UPHELD
NO. 113,267—JUNE 25, 2018

FACTS: This is the latest decision in the on-going litigation involving the adequacy and equity of Kansas' system of funding public schools. After it was told that the 2017 funding formula was neither adequate nor equitable, the legislature was again tasked with crafting a constitutionally compliant funding plan. The 2018 legislature responded by passing Senate Bill 423 and Senate Bill 61, which added approximately $854 million in new funding, to be phased in over the next five school years. The remedial legislation also allowed each district to increase its local option budget authority in order to generate new funds. The legislation was reviewed by the Supreme Court to check for adequacy and equity.

ISSUES: (1) Adequacy; (2) equity

HELD: The additional funds allotted by Senate Bills 61 and 423 still fall short of reaching constitutional adequacy, primarily because there are insufficient adjustments made for inflation. By timely making these inflation adjustments, the current funding scheme will come into compliance. Senate Bills 61 and 423 remedy the equity issues that were identified in previous Gannon opinions. Specifically, the reliance on LOB does not create an inequitable system, although reliance on LOB should be pursued with caution.

STATUTES: Kansas Constitution, Article 6, § 6; K.S.A. 2017 Supp. 72-3218; K.S.A. 2005 Supp. 72-1127

 

Criminal

FELONY MURDER—JURY INSTRUCTION
STATE V. ROBINSON
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 115,483—JUNE 29, 2018

FACTS: Robinson and his cousin were charged with the murder of an associate. A witness at the scene identified the cousin as the shooter, but both the cousin and Robinson were charged with aggravated burglary and felony murder. Robinson was convicted as charged and this appeal followed.

ISSUES: (1) Sufficiency of the evidence; (2) adequacy of jury instruction

HELD: Under the felony-murder statute, the State did not have to prove that Robinson was the triggerman. Rather, the State has to prove that Robinson acted as a principal in the crime which resulted in a death. The identity of the shooter was irrelevant. The State was only required to prove that one participant fired the gun. The jury instruction appropriately communicated that fact. And any error in the specific wording of the instruction was harmless.

STATUTES: K.S.A. 2016 Supp. 21-5402; K.S.A. 22-3201, -3201(f)

 

JUDICIAL MISCONDUCT—SEARCH AND SEIZURE—TRIAL ERRORS
STATE V. WALKER
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 116,174—JUNE 29, 2018

FACTS: Walker and his cousin were charged with aggravated burglary and felony murder after an associate was shot and killed. Eyewitnesses at the scene tentatively identified Walker as the shooter, but the story later changed to finger the cousin. Physical evidence placed Walker at the scene. At his first trial, the jury convicted Walker for aggravated battery but could not reach a verdict on the felony-murder charge. A second trial produced the same result, but Walker was convicted after a third trial. This appeal followed.

ISSUES: (1) Right to be present; (2) error to destroy juror notes; (3) error to admit evidence of custodial interview; (4) response to jury question

HELD: The trial judge violated Walker's constitutional rights by meeting with two jurors outside of his presence. But under the federal constitutional error standard, the error was harmless. The ex parte communication concerned no critical matter and the strength of the evidence supported the verdict and excused the error. The trial judge shredded notes from a prior juror that were discovered by a current juror and reported. That act by the judge did not show partiality and any error was purged by subsequent actions. The act of shredding the notes was not judicial misconduct. Neither the length of the custodial interview nor the accusatory tone of law enforcement rendered Walker's statements involuntary. The district court did not err by refusing to respond to a jury question by giving an aiding and abetting instruction. That instruction would have been legally inappropriate.

STATUTE: K.S.A. 2013 Supp. 21-5402(a)(2), 5807(b)

 

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June 22, 2018 Digests

Posted By Administration, Tuesday, June 26, 2018

 Kansas Supreme Court 

Civil

HABEAS CORPUS
BEAUCLAIR V. STATE
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS REVERSED,
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 112,556—JUNE 22, 2018

FACTS: Beauclair was convicted of multiple sex crimes which were affirmed on direct appeal. Approximately two years later, Beauclair moved to withdraw his plea, producing an affidavit from the victim which, if believed, would have completely exonerated Beauclair. Beauclair's attorney did not make the victim available to testify, and the district court refused to admit the affidavit. Beauclair's motion was denied. In the following years, Beauclair filed multiple pro se pleadings in which he continued to claim actual innocence. These motions included multiple K.S.A. 60-1507 motions, which were both untimely and successive. The most recent motion was denied by the district court, and the denial was affirmed by the Court of Appeals which found that Beauclair's motion was procedurally barred due to his failure to show manifest injustice. Beauclair's petition for review alleged two errors: whether he stated a colorable actual-innocence claim and whether he showed actual prejudice from a prior attorney's conflict of interest. That petition was granted.

ISSUES: (1) Untimeliness of the motion; (2) successiveness

HELD: Beauclair's claim of actual innocence is asserted as a vehicle that would excuse the untimeliness of his 1507 motion. Under the analysis from the United States Supreme Court, the court is not required to take as true Beauclair's claim of actual innocence. But the Court of Appeals improperly weighed Beauclair's credibility when rejecting his affidavits. Because there is evidence that could support Beauclair's claims, this case must be remanded to the district court for live testimony on Beauclair's claim of actual innocence. Beauclair's colorable claim of actual innocence excuses the successive nature of his pleading.

STATUTES: K.S.A. 2017 Supp. 60-1507(f)(2)(A); K.S.A. 60-1507, -1507(b), -1507(c), -1507(f)

PARENTAL RIGHTS
IN RE T.S.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
APPEAL DISMISSED
NO. 114,895—JUNE 22, 2018

FACTS: T.S. was found to be a child in need of care, and the grandparents filed a motion to terminate the parents' rights. After a hearing, the district court found that T.S. was in need of care and appointed the child's grandfather as a permanent custodian. But it refused to terminate parental rights. Grandfather appealed, arguing it was error to deny his motion to terminate parental rights. The Court of Appeals dismissed the appeal, finding it had no jurisdiction to hear an appeal from the denial of a motion to terminate parental rights. The Supreme Court granted Grandfather's petition for review.

ISSUE: (1) Jurisdiction to hear appeal from denial of motion to terminate parental rights

HELD: K.S.A. 38-2273 does not provide jurisdiction to hear an appeal from any order regarding parental rights. There is no statutory authority to hear an appeal from the denial of a motion to terminate parental rights. Under the plain language of the statute, Grandfather's appeal must be dismissed.

DISSENT: (Johnson, J.) K.S.A. 38-2273 should be read broadly enough to encompass any order relating to the parental rights.

STATUTES: K.S.A. 2016 Supp. 38-2273, -2273(a); K.S.A. 2012 Supp. 38-2264(h)

criminal

constitutional law—criminal procedure—fourth amendment
search and seizure
state v. jimenez
geary district court—affirmed and case remanded
court of appeals—reversed
No. 116,250 - june 22, 2018

FACTS: Officer stopped car driven by Jimenez for following another vehicle too closely. While in patrol car waiting for issuance of a citation, Jimenez was questioned for almost five minutes about her travel plans before the officer called in the license information and requested warrant checks. Officer then deployed dog sniff of car, which led to discovery of currency bundles totaling $50,000. Jimenez charged with criminal transportation of drug proceeds, or in the alternative, criminal transfer of drug proceeds. She filed motion to suppress the traffic stop evidence, arguing in part that the officer measurably extended the stop by asking travel plan questions before processing driver’s license and warrant information. District court granted the motion, finding the officer measurably extended the stop with travel plan questioning unrelated to the traffic violation, and no articulable facts supported a reasonable suspicion that other criminal activity was occurring to justify the delay. State filed interlocutory appeal. Court of appeals reversed in unpublished opinion, holding no constitutional violation occurred because travel plan questions were always within a stop’s scope. Jimenez’ petition for review granted.  

ISSUE: Fourth Amendmenttraffic stop

HELD: Kansas Supreme Court more fully explores for first time the Fourth Amendment jurisprudence in Rodriguez v. United States, 575 U.S. _, 125 S.Ct. 1609 (2015), relating to traffic stops which clarifies that any traffic stop extension without reasonable suspicion or consent—by even a de minimis length of time—amounts to an unreasonable seizure when the delay is based on anything but the articulated components of the stop’s mission. Under general principles in Rodriguez applicable to all traffic stops, circumstances will dictate whether and to what extent travel plan questions become part of the mission. State’s reliance on State v. Morlock, 289 Kan. 980 (2009), and post-Rodriguez Tenth Circuit cases is misplaced. Here, detailed questioning of Jimenez about her travel plans delayed the officer’s processing of license and warrant inquiries, and measurably extended the stop’s duration with no justification of any reasonable suspicion or probable cause to believe there was other criminal activity. Panel’s holdings are reversed. District court’s decision to suppress is affirmed, and case is remanded for further proceedings.

STATUTES: K.S.A. 2017 Supp. 22-3603; K.S.A. 2014 Supp. 21-5716(b), -5716(c); K.S.A. 20-3018(b), 22-3216(2), 60-2101(b)

constitutional law—criminal procedure—fourth amendment
search and seizure
state v. lowery
geary district court—affirmed—court of appeals—affirmed
No. 116,637—june 22, 2018

FACTS: Officer stopped car driven by Lowery for following another vehicle too closely. While in patrol car awaiting issuance of a citation, officer questioned Lowery about his travel plans for over six minutes before calling dispatch with license and registration information. Officer issued the citation, told Lowery he was free to go, and then asked if Lowery had anything illegal in car. Lowery said “no” and refused to consent to search. Lowery held until drug dog arrived and alerted on the car. State then charged Lowery with crimes based on drug-related evidence discovered in the car. He filed motion to suppress which the district court granted, finding in part the lawful stop ended when officer gave Lowery a warning citation and told him he was free to leave, a consensual encounter then occurred but quickly ended when officer told Lowery to sit down inside the police car, and there was no probable cause to justify the vehicle search. State filed interlocutory appeal. Court of Appeals affirmed in unpublished opinion, finding officer lacked reasonable suspicion to extend the stop. State’s petition for review granted.

ISSUE: Fourth Amendmenttraffic stop

HELD: Fourth Amendment jurisprudence relating to traffic stops, as set forth in Rodriguez v. United States, 575 U.S. _, 125 S.Ct. 1609 (2015), was explained and applied in State v. Jimenez (decided this same date) and State v. Schooler (decided this same date). During a stop an officer may not conduct nonconsensual inquiries unrelated to the mission in a way that prolongs the stop—without the reasonable suspicion ordinarily demanded to justify detaining an individual. The present case centers on the lawfulness of Lowery’s detention. Circumstances cited by the state as favoring reasonable suspicion include nervousness, inconsistent travel plan statements, operating a third-party vehicle, traveling to Colorado, the vehicle’s recent presence in Missouri, and the officer’s online research of airline fares. Each is specifically examined, finding as a whole the officer did not have reasonable suspicion to detain Lowery after the traffic stop. Affirmed.

CONCURRENCE (Johnson, J.): Concurs with majority’s result, but does not join majority’s observation that it perceived no impermissible detention stemming from the officer’s travel plan inquiries. This did nothing to further resolution of the question framed by the majority, and should have no precedential effect with respect to the propriety of travel plan inquiries.

STATUTES: K.S.A. 2017 Supp. 22-3603; K.S.A. 2014 Supp. 21-5716(b), -5716(c); K.S.A. 20-3018(b), 22-3216(2), 60-2101(b)

constitutional law—criminal procedure—fourth amendment
search and seizure
state v. schooler
Geary district court—reversed and remanded; court of appeals—reversed
No. 116,636—june 22, 2018

FACTS: Officer stopped car for a partially obscured license plate. While driver sat in the patrol car, officer questioned him about travel plans and texted for a drug dog based on evidence observed in the car and Schooler’s responses. Seventeen minutes into the stop, officer issued a warning ticket, told Schooler he was “good to go,” and then asked if Schooler had contraband, large amounts of currency, or firearms in the vehicle. Schooler said “no” and denied officer’s request to search the truck. Following a dog alert, marijuana and scales found. Schooler arrested and charged with narcotics offenses. He moved to suppress the marijuana and other evidence, arguing delays in calling for checks on license and rental documents resulted from questioning unrelated to the stop and were unsupported by reasonable suspicion to detain him after he was advised he was free to go. District court granted the motion, finding the detention was unlawful when officer exceeded the reason for the stop without reasonable suspicion of other crimes; finding Schooler’s responses did not provide reasonable suspicion to detain him after issuing a warning ticket and advising he was free to leave; and officer had no reasonable suspicion to detain Schooler while waiting for drug dog. State filed intelocutory appeal. In unpublished opinion, Court of Appeals affirmed the district court’s decision. State’s petition for review granted.

ISSUE: Fourth Amendment - traffic stop

HELD: Holding in State v. Jimenez, (decided this same date) is discussed. Under circumstances in this case, the officer’s progressive questioning did not impermissibly extend the stop. Up to the time the officer advised Schooler of his detention the officer was continuously engaged with Schooler as the officer processed the traffic stop while trying to satisfy his suspicions about the conflicts in what he was observing and being told. When officer advised Schooler he was being detained, the officer had an objectively reasonable, articulable suspicion of wrongdoing to justify detention for the dog sniff. Court discusses cited circumstances in this case which included: air freshener odor; multiple cell phones; Schooler’s vague, evasive and inconsistent statements about his travel plans and criminal history; and his actual criminal history. Lower courts are reversed and case is remanded.

CONCURRENCE (Rosen, J., joined by Beier and Johnson, JJ.): Concurs with majority’s reasoning and conclusion, but cautions law enforcement officers against using the promise of freedom in any attempt to circumvent constitutional protections. Here, when officer told Schooler he was free to leave, reasonable suspicion was already present and officer had no intention of letting Schooler depart. This specific technique reeks of fraud or coercion.

STATUTES: K.S.A. 2017 Supp. 21-5705(a), 22-3603; K.S.A. 20-3018(b), 22-3216(2), 60-2101(b), 79-5208

Kansas Court of Appeals

Civil

DUI—SEARCH AND SEIZURE
CITY OF LEAWOOD V. PUCCINELLI
JOHNSON DISTRICT COURT—AFFIRMED
NO. 118,165—JUNE 22, 2018

FACTS: After being pulled over by a police officer, Puccinelli failed initial sobriety tests. After being ordered out of the car, Puccinelli was asked to perform the HGN test, the walk and turn test, and the one-leg stand test. Puccinelli either failed or refused to perform all three tests, and the officer noted Puccinelli's bloodshot eyes and an odor of alcohol. After being taken into custody, Puccinelli refused to take either a blood or breath alcohol test, and he was charged with DUI. At a hearing, Puccinelli asked that the court suppress the results of the field sobriety testing. The motion was denied. Puccinelli was convicted and he appealed.

ISSUES: (1) Suppression of field sobriety tests; (2) Use of HGN test

HELD: Field sobriety tests are not searches under the Fourth Amendment, and there is evidence that Puccinelli voluntarily submitted to the field sobriety tests. The state did not attempt to admit the results of HGN testing. Rather, there was an attempt to show Puccinelli's behavior during the test instructions. That behavior was relevant to show inebriation and was properly admitted.

CONCURRENCE (Schroeder, J.): Prosecutors are cautioned against the broad use of videotape of an HGN test. The safer course of action would be to redact that test from a video before it is shown to a jury.

STATUTE: Kansas Constitution Bill of Rights § 15

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June 15, 2018 Digests

Posted By Administration, Tuesday, June 19, 2018
Updated: Tuesday, June 19, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF RUSSELL W. DAVISSON
NO. 118,758—JUNE 15, 2018

FACTS: After Davisson failed to appear at the hearing, a hearing panel determined that Davisson violated KRPC 1.3 (diligence), 1.4(a) (client communication), 8.4(d) (conduct prejudicial to administration of justice), Rule 207(b) (cooperation with disciplinary investigation), and Rule 211(b) (timely answer to formal disciplinary complaint). The disciplinary matter arose after Davisson was retained by a couple who wanted his help with filing a bankruptcy petition. Although the petition was filed and the clients completed their payment plan, Davisson did not answer their calls and provide the assistance they needed to receive a discharge. The clients filed a disciplinary complaint, but Davisson did not respond. Davisson also had complaints filed in other cases where he failed to respond to the disciplinary investigator.

HEARING PANEL: Despite receiving proper service, Davisson did not appear at the formal hearing. After finding that Davisson violated multiple conduct rules, the panel concluded that Davisson's failure to cooperate amounted to a bad faith obstruction of the disciplinary process. Finding no mitigating factors, the hearing panel agreed with the disciplinary administrator and recommended discipline of disbarment.

HELD: Davisson failed to appear for argument before the court. After considering the record plus the extra aggravator of his failure to appear, the court agreed that Davisson should be disbarred.

 

Civil

CONTRACTS—STATUTORY INTERPRETATION
SCRIBNER V. U.S.D. NO. 492
BUTLER DISTRICT COURT—AFFIRMED
NO. 116,818—JUNE 15, 2018

FACTS: Scribner was employed by U.S.D. 492 until May 2015, when she was notified that her contract was not going to be renewed. Acting in accordance with statutory amendments to the teacher due process statutes, the school board did not give a reason for the decision or notify Scribner of her due process rights. Scribner believed that these omissions were unconstitutional, and she filed a motion for declaratory judgment asking the court to find that the statutory amendments were unconstitutional. The district court found that the statutory amendments were constitutional, as the change did not deny due process to the teachers. Scribner appealed

ISSUES: (1) Property interest in continued employment; (2) violation of employment contract

HELD: Scribner did not enjoy a vested right that could not be removed or altered through due process. The legislative process provides all the process that is due when legislation results in the deprivation of protected property interests. The legislation that stripped away the enhanced requirements for nonrenewal was not arbitrary. Although there were not any public hearings held prior to passage of the legislation, due process does not require a hearing before legislation is adopted. Because the board complied with the statute in effect at the time of Scribner's nonrenewal, there is no merit to her breach of contract claim.

STATUTES: K.S.A. 2017 Supp. 72-2251(a), -2252(a), -2252(b); K.S.A. 2014 Supp. 72-5437; K.S.A. 2013 Supp. 72-5436(a), -5436(b), -5437(a), -5438(a), -5445(a); K.S.A. 60-409, -412, 72-5436

 

criminal

criminal law—criminal procedure—jury instructions
state v. jarmon
sedgwick district court—affirmed
court of appeals—affirmed in part—reversed in part
No. 111,608—june 15, 2018

FACTS: Jarmon was convicted of felony burglary. Prior to sentencing, he filed a pro se motion for a new trial, based on alleged ineffective assistance of trial counsel. District court heard arguments and denied the motion, finding no basis for granting a new trial and finding an insufficient basis for replacing defense counsel. Jarmon appealed that decision, and claimed reversible error for jury to be instructed on burglary without including a definition of theft. In unpublished opinion, the Court of Appeals affirmed the conviction but reversed and remanded for a renewed hearing with new appointed counsel on Jarmon’s pro se collateral challenge to his conviction on the basis of ineffective assistance of counsel. State’s petition granted for review of the remand order. Jarmon’s cross-petition granted for review of the claimed instructional error.

ISSUES: (1) Omission of an instruction on elements of theft, (2) motion for new trial

HELD: Clearly erroneous standard applies because Jarmon did not object to the burglary instruction. Under facts in this case, the omission of an instruction on the elements of theft was harmless error, as a rational jury would have concluded that at least one of the reasons Jarmon went into the building was to steal property. State v. Rush, 255 Kan. 672 (1994), is factually distinguished.

            Court of Appeals treated Jarmon’s out-of-time motion for a new trial as a motion under K.S.A. 60-1507, and erroneously mandated appointment of new counsel for a collateral challenge that had no support in the record. Remand for a hearing on the motion for new trial or for replacement of counsel is inappropriate. Court of Appeals ruling on the motion for new trial is reversed. District court’s denial of the motion for new trial is affirmed.

STATUTES: K.S.A. 2012 Supp. 21-5801; K.S.A. 22-4506, -4506(b), 60-1507, -1507(b)

 

constitutional law—criminal procedure—criminal law—death penalty—evidence—juries—statutes—venue
state v. thurber
cowley district court—affirmed in part—Reversed in part—remanded
no. 102,605—june 15, 2018

FACTS: Thurber was charged with crimes arising from the 2007 death of a 19-year old victim. State filed notice of intent to seek the death penalty based on single aggravating circumstance the murder was committed in an especially heinous, atrocious, or cruel manner. Jury convicted Thurber of aggravated kidnapping, and capital murder based on combined theories of attempted rape and aggravated criminal sodomy. It also sentenced him to death. At 2009 sentencing hearing, district court found insufficient reason in the mitigation evidence to grant Thurber’s motion for a determination of intellectual disability. Thurber appealed claiming: (1) district court erred by admitting statement Thurber made after reinitiating contact with law enforcement after previously invoking right to an attorney; (2) prosecutorial error in guilt phase by providing jury with “imaginary script” during opening and closing arguments, telling jury the prosecutor was personally responsible for the case and Attorney General had determined death was the appropriate sentence, and stating premeditation could be “instantaneous;” (3) jury was not instructed it must be unanimous as to whether capital murder was based on attempted rape or aggravated criminal sodomy; (4) district court erred by denying challenges for cause during voir dire of two seated jurors; (5) insufficient evidence supported the oral verdict when bailiff misread the verdict form to incorrectly say “criminal sodomy” instead of “aggravated criminal sodomy” as the crime underlying capital murder; (6) testimony of six women who had previous encounters with Thurber should not have been admitted because it constituted improper character evidence or inadmissible prior crimes evidence; (7) witness identification for first time in courtroom was impermissibly suggestive; (8) error to allow victim’s mother’s testimony concerning personal details of victim’s life, including antemortem photograph of the victim; (9) district court erred by not sua sponte instructing jury on felony murder as a lesser included offense of capital murder; (10) district court’s denial of motion filed prior to voir dire to change venue violated Thurber’s Sixth Amendment right to an impartial jury; and (11) he was denied his constitutional right to be present at all critical stages of his criminal trial when district court on first day of guilt phase excused a juror who became ill and replaced that juror with first alternate juror without advising Thurber. Court also considers whether cumulative error denied Thurber a fair trial during the guilt phase. Concerning the penalty-phase proceedings, Thurber claimed in part the district court erred by denying his presentencing request for a hearing on whether he was intellectually disabled, as required by Atkins v. Virginia, 536 U.S. 304 (2002), and he attacked the Kansas statutory test for making such decisions.

ISSUES: (1) Invocation of right to counsel, (2) prosecutorial error, (3) multiple acts, (4) jurors challenged for cause; (5) sufficiency of evidence supporting the oral verdict, (6) character and prior crime evidence, (7) first time in-court witness identification, (8) victim’s good character evidence, (9) felony murder as lesser included offense, (10) change of venue, (11) lack of presence when juror excused, (12) guilt-phase cumulative error, (13) penalty phase denial of hearing on intellectual disability, (14) constitutionality of statutory test for determining if a defendant is intellectually disabled

HELD: District court erred by admitting Thurber’s statement to law enforcement. Applying rule in Edwards v. Arizona, 451 U.S. 477 (1981), Thurber reinitiated communication with a desire to talk about something other than the investigation. Under facts in case, however, this error was harmless in determining Thurber’s guilt.

            All allegations of prosecutorial error are examined, identifying specific missteps that were harmless under the facts in this case.

            Jury unanimity not required because this was not a multiple acts case. Attempted rape and aggravated criminal sodomy were alternative means of committing capital murder.

            Voir dire questioning of the two seated jurors is examined, discussing juror impartiality against Eighth Amendment standard, and reviewing juror’s acquaintances with victim’s friends and financial hardship. No abuse of discretion found in district court’s denial of motions to strike.

            No Kansas case has addressed whether the oral or written verdict controls. Absent strong indication the oral pronouncement better reflects the jury’s will, the jury’s written verdict controls. Under circumstances in this case, the written verdict clearly reflects the jury’s intent.

            The women’s testimony demonstrated behavioral patterns rather than a particular character trait as contemplated by K.S.A. 60-447. Also, K.S.A. 60-455 did not bar admission because the testimony was not evidence of prior criminal conduct or civil wrongs. Court refuses to adopt rule barring evidence in guilt phase that would not be relevant in sentencing.

            Court has not addressed whether a first time, in-court identification following an out-of-court failure to identify needs to be tested against reliability factors applicable in the traditional second prong of the out-of-court eyewitness identification analysis. Split of other jurisdictions noted. Under assumed error on facts of case, no reasonable possibility the verdict would have been different without the witness’ in-court identification.

            No abuse of district court’s discretion found. College dance scholarship evidence was relevant and probative. Additional detail of victim as high school valedictorian was extraneous but not a detail that would inflame jury passions or prejudices. Photographs was probative of victim identity, an element of the crime charged. And previous court opinions have allowed antemortem photographic evidence.

            Under K.S.A. 2016 Supp. 21-5402(d), felony murder is not a lesser included offense of capital murder.

            Claim that trial’s venue was constitutionally inappropriate due to presumed prejudice is rejected. Applying seven factors in Skilling v. United States,  561 U.S. 358 (2010), to Thurber’s  venue challenge based on community prejudice, only one factor weighs in favor of presumed prejudice, four weigh against it, one factor is inapplicable, and one factor is neutral.

            Under facts of case, assumed error including failure to follow replacement procedure under K.S.A. 22-3412(c), was harmless.

            Cumulative error did not substantially prejudice Thurber or deny him a fair trial during the guilt-phase proceedings. Thurber’s convictions are affirmed.

            Opinion discusses history of U.S. Supreme Court’s development of constitutional standard for determining whether a defendant is intellectually disabled (previously termed as “mentally retarded”), and of Kansas legislative responses. Review of district court’s 2009 determination in this not-yet-final criminal prosecution requires application of current constitutional standards and state statues. K.S.A. 2016 Supp. 21-6622(h) is unconstitutional as it pertains to the incapacity limitation, but that incapacity language is severable. K.S.A. 2016 Supp. 76-12b01(i) allows criminal defendants to establish sub-average general intellectual functioning by means in addition to standardized intellectual testing. Understood for Eighth Amendment purposes in a manner compatible with federal caselaw, this means the statute’s requirements are to be informed by—and cannot disregard—the clinical definition for intellectual disability currently used in the medical community, as recited in the caselaw. Under the unique circumstances of this case and the limited facts available for appellate review, remand is necessary. District court must reexamine Thurber’s motion based on applicable caselaw, current statutes, and current diagnostic framework used by medical community for determining intellectual disability. Thurber is not entitled to have his death sentence automatically converted to a life sentence due to the constitutional infirmity identified in K.S.A. 2016 Supp. 21-6622(h). Court retains jurisdiction over the remainder of Thurber’s penalty-phase appeal pending notification regarding outcome on remand.

DISSENT (Rosen, J.): Disagrees with majority’s decision to remand. The questions are neither so unique nor facts so limited that the outcome of that remand cannot be determined with sufficient certitude. Would uphold the district judge’s determination and proceed to important penalty phase issues without unnecessary delay.

DISSENT (Johnson, J.): With respect to the guilt phase, agrees with errors identified by the majority, but discerns more error. Prosecutor’s use of an imaginary script was intolerable; district court’s rehabilitative coaching of mitigation-impaired venire person undermined the fairness of the jury; a cautionary jury instruction on eyewitness testimony was legally appropriate and it was error not to give one; photograph of victim had zero probative value because element to be proved was the killing of a human being who could have been unidentified; in light of community survey results, fundamental fairness calls for change of venue. With respect to the penalty phase, majority’s remand order is unnecessary and faulty. Would reverse Thurber’s death sentence and remand for resentencing to life in prison without possibility of parole.

STATUTES: K.S.A. 2016 Supp. 21-5402(d), -6619(a), -6619(b), -6622, -6622(a), -6622(b), -6622(c), -6622(f), -6622(h), 76-12b01, -12b01(a), -12b01(d), -12b01(i); K.S.A. 2015 Supp. 21-6619(b), -6622(b); K.S.A. 2013 Supp. 76-12b01(i); K.S.A. 21-3438(a), -3439(a)(4), -3505(a), -4623, -4623(a), , -4623(e) , -4624, -4624(a), -4625(6), -4626(6), -4627(b), -4629, -4634, -4634(e), -4634(f), 22-2616(1), -3405(a), -3410(2)(i), -3412(c), 3421, 60-404, -407(f), -446, -447, -455, 76-12b01, -12b01(i)

 

Kansas Court of Appeals

Civil

CONSTITUTIONAL LAW—WRONGFUL BIRTH
TILLMAN V. GOODPASTURE
RILEY DISTRICT COURT—AFFIRMED
NO. 117,439—JUNE 15, 2018

FACTS: Tillman filed a tort claim for wrongful birth after Dr. Goodpasture failed to diagnose several structural abnormalities in her baby's brain. The baby was born with severe and permanent neurological impairments. In bringing suit, Tillman claimed that K.S.A. 2013 Supp. 60-1906 – the statute which bars a cause of action for wrongful birth – violates Sections 5 and 18 of the Kansas Bill of Rights. In addition to monetary damages, Tillman wanted a declaration that the statute is unconstitutional. Dr. Goodpasture's motion for judgment on the pleadings was granted after the district court determined that the tort of wrongful birth did not exist at the time the Kansas Constitution was adopted. Tillman appeals.

ISSUES: (1) Constitutionality of statute under the Section 5 of the Bill of Rights; (2) constitutionality under Section 18 of the Bill of Rights

HELD: Section 5 of the Bill of Rights preserves the right to a jury trial for causes of action that existed when our Constitution was adopted. The tort of wrongful birth was first recognized in 1990, and at that time it was recognized as a new cause of action with unique elements, separate from the general tort of medical malpractice. Section 18 similarly applies only to causes of action that existed in 1859.

STATUTES: Kansas Constitution Bill of Rights Section 5, Section 18; K.S.A. 2013 Supp. 60-1906, -1906(a)

 

FEDERAL PREEMPTION—WORKERS COMPENSATION
EAGLEMED V. TRAVELERS INSURANCE
WORKERS COMPENSATION BOARD—AFFIRMED IN PART
REVERSED IN PART—REMANDED
NO. 117,903—JUNE 15, 2018

FACTS: EagleMed is a company which provides air ambulance transport. In four workers compensation cases, EagleMed was called upon to fly injured workers from rural hospitals to bigger care centers in Wichita or Garden City. In each case, Travelers provided workers compensation insurance coverage for the employer. After receiving invoices from EagleMed, Travelers objected and offered to make a lower payment based on the Medicare fee schedule that is used for air transport services. After the offer was rejected, EagleMed initiated a fee dispute proceeding with the director of Workers Compensation. It was undisputed that the federal Airline Deregulation Act of 1978 pre-empts any state law as it relates to setting air transport pricing. But the parties disagree about the scope of that pre-emption. The hearing officer ultimately concluded that the Division of Workers Compensation has no authority to set rates for payment for air ambulance services. The board ultimately ordered Travelers to pay the full amount billed by EagleMed. Travelers appealed.

ISSUE: (1) Federal preemption

HELD: The Supremacy Clause invalidates state laws which interfere with or are contrary to federal law. Pre-emption is either express or implied. The ADA expressly preempts states from making any law which affects air pricing. Because EagleMed is an air carrier, the ADA pre-emption provision broadly applies to the fee dispute it has with Travelers. The workers compensation fee schedule does not provide any guidance on what usual and customary fees are for air ambulance services, and setting those fees would be preempted by the ADA. Any question about the reasonableness of air ambulance fees must be addressed to federal authorities. The fee dispute must be dismissed by the Division of Workers Compensation.

STATUTES: 49 U.S.C. § 40102(a)(2), § 41712(a), § 41713(b) (2012); K.S.A. 2017 Supp. 44-508, -510j, -510j(h), -534

 

AGENCY ACTION—WORKERS COMPENSATION
PIERSON V. CITY OF TOPEKA
WORKERS COMPENSATION BOARD—AFFIRMED IN PART—REVERSED IN PART—DISMISSED IN PART—REMANDED
NO. 117,987—JUNE 15, 2018

FACTS: Pierson was injured in September 2012 and immediately began treatment for his injuries. Pierson's workers compensation claim was denied. The ALJ found that Pierson's injury was compensable under workers compensation and that he had a 15 percent permanent partial impairment rating. The city appealed. The board agreed that Pierson's injuries were compensable and affirmed the impairment rating, but it found that any medical treatment Pierson received prior to October 8, 2012, was unauthorized. The city appealed and the board's findings were affirmed. While that first appeal was pending, Pierson filed an application for modification of medical benefits seeking post-award medical benefits. After he did not receive payment, Pierson filed a demand for payment plus requested penalties. The board ordered the city to pay post-award medical expenses and remanded the case back to the ALJ for further factfinding. The city appealed the award of pre-award medical expenses. Pierson cross-appealed the board's rulings on attorney fees and penalties.

ISSUES: (1) Jurisdiction over pre-award medical expenses; (2) law of the case; (3) date of post-award compensation; (4) penalties and attorney fees

HELD: The board's remand on the issue of Pierson's pre-award medical expenses was a non-final agency action. The court does not have jurisdiction to review non-final agency action, and the city's appeal is dismissed as premature. The current appeal, as it relates to Pierson's post-award medical expenses, is new and is not barred by the law of the case doctrine. Pierson's application for post-award medical treatment was insufficient and lacked enough detail to serve as a request for post-award treatment. The date set by the board was erroneous. Pierson's initial demand for payment lacked particularity and did not provide supporting documents. Because of these deficiencies, the board properly denied Pierson's request for penalties. The board erred by arbitrarily setting an hourly attorney fee amount. This case must be remanded for proper consideration of attorney fees. Pierson is not entitled to appellate attorney fees.

STATUTES: K.S.A. 2017 Supp. 44-510j(h), -510k(a)(1), -510k(b), -536(b), -536(g), -556(a), 77-621(c)(7); K.S.A. 44-512a, 77-607(a), -607(b)(1), -607(b)(2)

 

 

 

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June 8, 2018 Digests

Posted By Patti Van Slyke, Monday, June 11, 2018
Updated: Monday, June 11, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF REMAND
IN THE MATTER OF ZANE TODD, JR.
NO. 118,742—JUNE 8, 2018

FACTS: A client accused Todd of failing to promptly request a recalculation of jail time credit. Although the issue was ultimately resolved with a determination that the client was not entitled to relief, Todd stipulated to the misconduct and entered a diversion agreement with the Disciplinary Administrator. The diversion agreement required Todd to complete 16 hours of CLE. Todd completed only 15 hours and the agreement was terminated. After the termination of diversion, the Disciplinary Administrator filed a formal complaint. Todd, believing he had been diagnosed with a terminal illness, did not respond. After learning of his circumstances, the Disciplinary Administrator recommended that Todd communicate with KALAP to see if another term of diversion was appropriate. Todd's health eventually improved and a hearing was set on the formal complaint.

HEARING PANEL: The panel noted that much of Todd's delay in dealing with the disciplinary process was caused by his health issues. On that basis, the hearing panel disagreed with the Disciplinary Administrator's request for suspension and recommended discipline of published censure.

HELD: The hearing panel erred when it found that Todd violated KRPC 8.1(b). This case has significant mitigation, and Todd was entitled to a great deal of deference due to his health circumstances. And some of the poor communication was caused by procedural irregularities within the Disciplinary Administrator's office. For that reason, this case is remanded to the Disciplinary Administrator for imposition of an informal admonition with costs paid by the Disciplinary Administrator.

 

Civil

STATUTORY CONSTRUCTION—WORKERS COMPENSATION
ATKINS V. WEBCON
WORKERS COMPENSATION BOARD—COURT OF APPEALS IS AFFIRMED, BOARD IS AFFIRMED
NO. 113,117—JUNE 8 2018

FACTS: Atkins worked as a roofer for Webcon. As a senior crew member, he was often assigned to out-of-state jobs. For these jobs, the crew would depart the company office in company-owned vehicles on Monday and return on Friday. Employees were on the clock for approximately 12 hours. After that time, they were free to do what they wished, with the caveat that company vehicles could not be driven to a bar. One evening, Atkins walked to a bar that was across the street from his hotel. On his way back to the hotel, Atkins was struck by a car being driven by an intoxicated driver. Atkins suffered catastrophic and permanent injuries. Atkins received preliminary benefits, and an ALJ found after a regular hearing that Atkins' injuries arose out of and in the course of his employment because travel was part of his job. The board reversed, disagreeing with the ALJ that travel was intrinsic to Atkins' job. The Court of Appeals affirmed and Atkins' petition for review was granted.

ISSUE: (1) Compensability of Atkins' injuries

HELD: There is no bright-line test to determine whether an injury occurred in the course of employment. The inquiry should be whether the injury is connected to job performance. If travel is an intrinsic part of the job duties, workers compensation eligibility extends to the period when an employee is coming and going from the job. But in this case, Atkins was neither going to nor coming from work. The activity he was engaging in at the time of his injuries had no connection to Atkins' work. For that reason, the board correctly found that Atkins was not entitled to benefits.

STATUTES: K.S.A. 2017 Supp. 44-508(f)(3)(B), 77-621(c)(7), -621(d); K.S.A. 2008 Supp. 44-501(a), -508(f), -556(a); K.S.A. 77-601

 

criminal

criminal law—criminal procedure—evidence—juries—jury instructions 
state v. barlett
wyandotte district court—affirmed; court of appeals—affirmed
No. 112,573—june 8, 2018

FACTS: Barlett involved in a three car chase that resulted in a shooting death. Trial court denied Barlett’s requests for a jury instruction on self-defense, and for an instruction that mere association with the principals or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor. Trial court also denied Barlett’s motion for a mistrial when jury, which had been provided a full transcript of Barlett’s recorded interrogation, was unable to view half the recording due to equipment failure. Jury convicted Barlett of criminal discharge of a firearm into a vehicle under a theory of aiding and abetting. Barlett entered guilty plea to voluntary manslaughter after jury split on the felony-murder charge. In unpublished opinion, Court of Appeals affirmed the firearm conviction, finding in part the self-defense instruction was legally inappropriate under State v. Bell, 276 Kan. 785 (2003), and State v. Kirkpartrick, 286 Kan. 329 (2009), because Barlett was charged with a violent felony which prevented him from asserting a theory of self-defense. Barlett’s petition for review granted in part on claims that the district court: (1) erred by not instructing the jury on self-defense; (2) erred by not instructing jury that the defendant’s mere presence with the principals or at the scene of the crime was insufficient to establish guilt as an aider or abettor; (3) failed to provide jury with a statutory definition of intentional conduct; and (4) violated Kansas statute by not replaying the recording in its entirety.

ISSUES: (1) Jury instruction—self-defense, (2) jury instruction—aiding and abetting, (3) jury instruction—intentionality, (4) malfunctioning electronic equipment

HELD: Four-step progressive instructional analysis in State v. Plummer, 295 Kan. 156 (2012), is applied. General rule stated in Bell and Kirkpatrick—that a defendant charged with committing a forcible felony is not permitted to assert a theory of self-defense—is overly broad and is inconsistent with intent of legislature and other Kansas Supreme Court opinions. Better rule is adopted: a defendant may not assert self-defense if that defendant is already otherwise committing a forcible felony when he or she commits a separate act of violence. Under this new rule, a self-defense instruction was legally appropriate in this case, but it was not factually appropriate.

            As in State v. Carter,  305 Kan. 139 (2016), the mere presence or association instruction would not have been factually appropriate in this case.

            Panel’s analysis and finding that an instruction defining intentionality was not warranted in this case, and that any error was harmless, is affirmed.

            No violation of K.S.A. 2017 Supp. 22-3420(c) is found, and no abuse of district court’s discretion when it decided the equipment failure did not produce a fundamental procedural failure. The means or form of responding to a jury’s request to review evidence is discretionary, not mandatory.

STATUTES: K.S.A. 2017 Supp. 21-5111(n), -5202(h), -5223, -5226(a), 22-3420(c); K.S.A. 21-3214, -3214(a), 22-3423(1)(c)

 

criminal law—criminal procedure—evidence—statutes
state v. george
leavenworth district court—reversed and remanded
court of appeals—reversed
No. 112,224—june 8, 2018

FACTS: Following mistrial, George was convicted in second trial of kidnapping, rape, aggravated robbery, and aggravated intimidation of a witness or victim. George relied on a misidentification defense. Second-trial evidence centered on victim’s testimony, surveillance video and photo lineups; and a stipulation that was referenced but not included in the record that indicated DNA test results from rape kit or victim’s clothing showed consistency with victim’s boyfriend but no consistency with George’s DNA. George filed pro se petition for post-conviction DNA testing, asking for testing of collected but previously untested hairs. District court denied the petition, relying on State v. Lackey, 42 Kan.App.2d 89 (2009)(Lackey I), to find additional testing would not point to George’s innocence. George appealed. Court of Appeals affirmed in unpublished opinion, finding district court erred in relying on Lackey I which was overturned by State v. Lackey, 295 Kan. 816 (2012)(Lackey II). Applying Lackey II, panel found that while the hairs could produce exculpatory evidence, they would nevertheless be cumulative to other record evidence. Review granted.

ISSUE: Postconviction motion for DNA testing

HELD: On record in this case, district court erred in denying George’s petition for DNA testing of hairs found at the crime scene. If testing of hairs found where rape occurred only revealed that George’s DNA was not present, the results would be exculpatory under Kansas law. Unlike other jurisdictions, the evidentiary value of this potentially exculpatory evidence does not matter at this stage. Because Kansas law does not allow for weighing of evidence until after DNA test results are obtained, exculpatory by the smallest margin is sufficient. Once DNA test results are obtained, district court makes probabilistic determination about what reasonable, properly instructed jurors would do with the new evidence in light of totality of the circumstances. Under K.S.A. 2015 Supp. 21-2512(c), future testing of the hairs “may produce” results indicating presence of other individuals’ DNA, which would be first of its kind from the crime scene and thus necessarily noncumulative. Reversed and remanded to district court to examine actual stipulation from retrial. If that stipulation essentially provided that no person’s DNA besides the victim’s boyfriend’s was present at the crime scene, then DNA testing of the hairs is unnecessary because the result would be cumulative. But if the stipulation does not so provide, then legal principles identified by the Kansas Supreme Court are to be applied to make the necessary determinations under K.S.A. 2015 Supp. 21-2512.

CONCURRENCE (Biles, J.): Writes separately to identify small but significant error in majority’s conclusion that test results showing that George’s DNA was not present would be exculpatory because it might show George was not at the scene. Concurs only because the DNA testing in this case has an ever-so-slight tendency instead to create the possibility of doubt as to the identity of the perpetrator.

STATUTES: K.S.A. 2017 Supp. 21-2512, -2512(c); K.S.A. 2015 Supp. 21-2512, -2512(c); K.S.A. 2013 Supp. 21-2512; K.S.A. 20-3018(b), 21-2512

 

criminal law—restitution—sentencing
state v. futrell
riley district court—affirmed in part, vacated in part, and remanded
court of appeals—affirmed in part, reversed in part
No. 115,160—june 8, 2018

FACTS: Futrell charged with burglary and theft for break-in of vehicle in January, and burglary and theft for break-in of same victim’s house in February. He entered no contest plea to the residential burglary in exchange for dismissal of all remaining charges. Sentence imposed including restitution as requested by State to cover a broken screen door, money missing from the victim’s home and vehicle, a broken vehicle window, and the destruction of an unrelated phone. Futrell appealed, arguing district court could only order restitution for the broken screen door—the damage caused by his conviction crime of burglary. Court of Appeals affirmed restitution for damage to screen door and money missing from home and vehicle in Feb. as having a sufficient causal connection to crime of conviction; affirmed restitution for damage to cell phone because Futrell agreed to that in plea agreement; and vacated order to pay for damage to January break-in as unrelated to the February burglary. 53 Kan.App.2d 272 (2016).  Futrell’s petition for review granted.

ISSUE: Restitution

HELD: Futrell does not appeal order that he pay for damage to screen door and damage to cell phone. Pursuant to State v. Arnett, 307 Kan. 648 (2018), district court can order restitution for any damages proximately caused by the crime of conviction. Order to pay for damages for money taken from home and vehicle in February is vacated, and case is remanded to district court for a new restitution hearing under the proper legal standard. Independent application of Arnett standard is precluded by factual deficiency in the record. 

STATUTE: K.S.A. 2017 Supp. 21-6607(c)(2)

 

constitutional law—criminal law—sentencing
state v. riffe
reno district court—reversed and remanded; court of appeals—reversed
No. 113,746—june 8, 2018

FACTS: Jury convicted Riffe of aggravated sexual battery, and acquitted him on charges of aggravated kidnapping and attempted rape. Sentence imposed included 24 months of postrelease supervision. State filed motion to correct an illegal sentence, asking for lifetime postrelease supervision. Riffe challenged that request as unconstitutional. District court agreed, finding one of the three factors in State v. Freeman, 223 Kan. 362 (1978), weighed in Riffe’s favor and the second two factors did not apply. District court imposed a 10 year postrelease supervision term as the “outer limits” of avoiding cruel and unusual punishment as applied in this case. State appealed.  In unpublished opinion, Court of Appeals found all three Freeman factors weighed in State’s favor under facts in the case, concluded that lifetime postrelease supervision was constitutional as applied, and remanded for resentencing with lifetime postrelease supervision. Riffe’s petition for review granted.

ISSUE: Constitutionality of lifetime postrelease supervision

HELD: District court made insufficient factual findings regarding Freeman factor one, and made legal error when it disregarded factors two and three. Court of Appeals panel erred by not remanding the case for consideration under the proper standard. Case remanded to district court for purpose of using proper legal standard to consider whether lifetime postrelease supervision is unconstitutional under section 9 of Kansas Constitution Bill of Rights as applied to Riffe. District court is to consider all three Freeman factors, and is cautioned to ensure its findings are based on the evidence presented by the parties, not the arguments submitted by attorneys.

CONCURRENCE and DISSENT (Johnson, J): Concurs with majority’s decision to remand for consideration of second and third Freeman factors. Disagrees with majority’s determination that district court’s findings as to the first Freeman factor were insufficient.

CONCURRENCE (Stegall, J.): Extensive review of Kansas Supreme Court’s history in interpreting section 9 prohibition against “cruel and unusual punishment,” the official recognition in Freeman of a proportionality component, and the Kansas response to the continuing proportionality debate in cases decided by supreme courts in Kansas and the United States. While argument that the original meaning of text of section 9 does not include a proportionality principle appears strong, he joins the majority in this case because Freeman factors remain the law in Kansas, and no wholesale revision of section 9 jurisprudence would be prudent without first hearing well developed and briefed arguments from parties and any interested amici.

STATUTE: K.S.A. 2010 Supp. 22-3717(d)(1)(G)

 

Kansas Court of Appeals

Civil

GRAND JURIES—STATUTORY INTERPRETATION
IN RE GRAND JURY PETITION OF DAVIS
DOUGLAS DISTRICT COURT—REVERSED AND REMANDED
NO. 118,410—JUNE 8, 2018

FACTS: Stephen Davis filed a petition to summon a grand jury. He claimed that Secretary of State Kris Kobach committed various election-related crimes. The county clerk verified that Davis collected enough signatures. But the district court dismissed the petition without prejudice, finding that it did not contain allegations of specific facts that would warrant a finding that the inquiry might lead to information which, if true, would warrant a true bill of indictment. David appealed.

ISSUES: (1) Directory versus mandatory language; (2) specificity requirement; (3) sufficiency of petition

HELD: K.S.A. 2017 Supp. 22-3001(c)(1) provides that a petition for grand jury shall state the subject matter of the prospective grand jury. Despite the use of the word "shall", that language is mandatory and not directory. The plain statutory language does not require that the petitioner make allegations of specific facts; rather, the threshold for making "sufficient general allegations" is low. Davis' petition alleges facts which track the election crimes as established by statute, in much the same way as a charging document. A grand jury petition does not require pleadings sufficient enough to allow for a defense, since there is no defense lodged against a grand jury inquiry. 

STATUTES: K.S.A. 2017 Supp. 22-3001, -3001(a), -3001(c)(1), -3001(c)(2), -3001(c)(3), -3001(c)(4), -3009, 25-2419, -2420, -2421a, -; K.S.A. 2011 Supp. 22-3001(b); K.S.A. 12-3013(a), 22-3001(1), -3201(b), 25-2419, -2420, -2421a, -2504

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June 1, 2018 Digests

Posted By Administration, Tuesday, June 5, 2018
Updated: Tuesday, June 5, 2018

Kansas Supreme Court

Criminal

criminal law—criminal procedure—prosecutors—statutes
state v. king
wyandotte district court—affirmed
No. 116,146—june 1, 2018

FACTS: King and a codefendant were jointly tried on charges arising from a string of violent robberies. Jury convicted King of attempted capital murder, aggravated robbery, aggravated battery, conspiracy to commit aggravated robbery, and criminal possession of a firearm. Two weeks later King filed motion for a new and severed trial, citing statements by codefendant’s attorney during closing argument. District court denied the motion. On appeal King claimed:  (1) insufficient evidence that he was one of the robbers, and no evidence of a formal agreement to support the conspiracy conviction; (2) prosecutor improperly interjected his personal beliefs during closing argument; (3) district court erred by denying King’s motion for a new trial; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial Error, (3) motion for New and severed trial, (4) cumulative error

HELD: Sufficient evidence supported the convictions. Under facts in case, a rational fact-finder could have found beyond a reasonable doubt that King was one of the robbers, and there was strong circumstantial evidence of an agreement to commit a string of robberies.

Prosecutor’s statements in closing argument are examined in detail. Prosecutor’s use of “I submit” was not error. Two of prosecutor’s “I think” statements” impermissibly conveyed the prosecutor’s opinion but were not error in this cases which occurred before Kansas Supreme Court cases put prosecutor’s on notice that such statements were improper. Three uses of “we know” were error, even if the inferences being drawn were reasonable, but these errors were harmless beyond a reasonable doubt.

King failed to request a severance before or during trial, did not object to the codefendant’s closing argument statements, and first asked for severance in his motion for a new trial. By failing to comply with K.S.A. 22-3204, King waived his ability to seek severance.

Aggregate effect of the three harmless prosecutorial errors found in this case were harmless beyond a reasonable doubt.  

STATUTES: K.S.A. 2017 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 21-5302(a); K.S.A. 22-3202(3), -3204 

criminal law—jury instructions­ prosecutors
state v. nesbitt
sedgwick district court—affirmed
No. 116,550—june 1, 2018

FACTS: Nesbitt convicted of felony murder, rape, and aggravated burglary. The crimes arose from a violent attack on a 100-year-old victim in her home, and the victim’s subsequent death. On appeal Nesbitt claimed:  (1) insufficient evidence supported his felony murder conviction because the victim’s death 21 days later was not within the res gestae of the underlying felony of rape, and no direct causal connection between the rape and the victim’s death; (2) insufficient evidence supported his aggravated burglary conviction because no evidence that he entered the home to commit rape; (3) prosecutor’s reference in closing argument to victim as a family “treasure” was improper attempt to inflame the passions of the jury; (4) trial judge erred by refusing to give a defense-proposed instruction on a race-switching exercise; and (5)  cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidencefelony murder, (2) sufficiency of the evidence - aggravated burglary, (3) prosecutorial error, (4) race-switching instruction, (5) cumulative error

HELD: No legal merit to Nesbitt’s res gestae argument. Sufficient evidence supported Nesbitt’s conviction on felony murder, including the foreseeability of a rape victim’s death 21 days after the attack, when injuries the victim suffered caused pain that immobilized her, giving rise to the development of fatal blood clots.

Sufficient evidence supported jury’s verdict that rape, not theft, was the attacker’s goal on entering the home. Victim’s house was tidy and orderly but for the mutilated back door through which the attacker entered and the disorganized bedroom where the rape occurred. Nothing to indicate someone entered the house to commit theftnothing was missing or moved, including valuable items in plain view.

Prosecutor’s challenged remarks were improper, with no purpose other than inflaming passions of jurors, but under facts in case no reversible error.

No Kansas case found in which the proposed race-switching instruction has been given. Federal and state court cases are reviewed, with majority rejecting the instruction. Here, the proposed instruction was not legally appropriate under Kansas law, thus district judge did not err in refusing to give it.

The single error found in this case does not support a cumulative error claim.

STATUTES: K.S.A. 2014 Supp. 21-5402(a)2), -5402(c)(1)(E); K.S.A. 2013 Supp. 21-5807(b)(1)

 

appeals—criminal procedure—motions—statutes
state v. parks
reno district court—affirmed
No. 116,172—june 1, 2018

FACTS: Parks convicted in 1997 of the 1978 premeditated first-degree murder of his wife. State v. Parks, 265 Kan. 644 (1998). Over 16 years later, Parks filed pro se “Motion to Set Aside a Void Judgment,” claiming his no contest plea was not knowing and intelligent. Appointed counsel argued the motion should be treated as one to withdraw Parks’ plea. District court agreed and denied the motion, finding it untimely with no showing of excusable neglect for the delay. Parks appealed, arguing for first time that district court should have construed the pro se motion as one under K.S.A. 60-1507 that would have been timely under the manifest injustice exception.

ISSUE: Motion to withdraw plea

HELD: Under facts in the case, invited error doctrine applies where Parks repeatedly invited district court to construe a pro se motion as a motion to withdraw plea. Argument that the district court should have construed and treated Parks’ motion as a K.S.A. 60-1507 motion is rejected. District court correctly held the motion was untimely filed. Parks failed to meet his burden of demonstrating excusable neglect to allow the out-of-time motion to withdraw his plea.

STATUTES: K.S.A. 2017 Supp. 22-3210, -3210(e)(1), -3210(e)(2), -3601; K.S.A. 22-3210, 60-1507; K.S.A. 21-3401, -4501 (Weeks, 1974)

Kansas Court of Appeals

Civil

DUE PROCESS—WORKERS COMPENSATION
PARDO V. UNITED PARCEL SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 116,842—JUNE 1, 2018

FACTS: Pardo is a long-term employee of UPS, and he continues to work there to this day. Pardo injured his shoulder in 2013 during the course of his employment. The injury was surgically repaired and the parties agreed to a 15% permanent partial impairment rating. Pardo injured his left shoulder again in 2015 while at work. Surgery revealed a new injury. It was treated and Pardo returned to work, but he continued to have pain and a limited range of motion. All of the physicians who examined Pardo agreed that he had residual issues with the shoulder that warranted both future medical treatment and an impairment rating. An amendment to K.S.A. 2014 Supp. 44-510d(b)(23) required the physicians to consult the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, which allows for only one lifetime impairment rating with no exception made for a physician's skill, experience, expertise, training, or judgment. Based on that decree, Pardo was assigned a zero percent impairment rating. The ALJ denied Pardo's request for compensation. That finding was affirmed by the Board, and Pardo appealed.

ISSUE: (1) Constitutionality of K.S.A. 2014 Supp. 44-210d(b)(23)

HELD: UPS provided no evidence to prove that the change from the 4th edition of the AMA Guides to the 6th edition was reasonably necessary to promote the general welfare of the people of Kansas. But the State did prove that the amendment was made because the 6th edition is more medically sound than the 4th edition. Under the Workers Compensation Act, Pardo surrendered his right to seek a common-law award from his employer. When the 6th edition of the Guides is used, Pardo gets nothing in return for that surrender. This leaves Pardo with no remedy and renders K.S.A. 2014 Supp. 44-510d(b)(23) unconstitutional as applied to him. The remedy is to sever the portion of the statute that is unconstitutional as applied to Pardo. The case is remanded for further proceedings.

STATUTES: Kansas Constitution Bill of Rights, § 1, §18, Article 2, § 1, Article 3, § 1; K.S.A. 2014 Supp. 44-501(e), -501b(d), -510d(b)(23); K.S.A. 44-574(b)

ATTORNEY FEES—GRANDPARENT VISITATION
IN RE PATERNITY OF M.V.
RENO DISTRICT COURT—REVERSED AND REMANDED
NO. 118,189—JUNE 1, 2018

FACTS: Father's paternity was established in 2009. Over the years, mother and father had many disagreements about custody, parenting time, and child support. In 2017, the paternal grandmother filed a motion requesting grandparent visitation of one weekend per month. Mother objected and asked for attorney fees, claiming that no provision in the Kansas Parentage Act allows for grandparent visitation. After a hearing, the district court concluded that M.V. had a substantial relationship with grandmother and that visitation was in her best interests. The district court granted visitation using grandmother's proposed schedule and denied mother's request for attorney fees. Mother asked the district court to reconsider and proposed a once-per-month visit of five hours, versus an entire weekend. Mother based this request on the fact that grandmother had an unknown man living with her and because grandmother took M.V. to visit father in jail, even though father was facing child sex abuse charges and the visits violated a court order. The district court denied reconsideration and mother appealed.

ISSUES: (1) Due process violation; (2) attorney fees

HELD: Grandmother does have the right to seek visitation in the context of a paternity action. And grandmother satisfied her burden to prove that there was a substantial relationship and that visitation was in M.V.'s best interests. But in any grandparent visitation action, the district court must presume that a fit parent is acting in the child's best interests and must give special weight to the parent's proposed visitation schedule. There is no indication in this case that the district court ever properly evaluated mother's proposed schedule. This case must be remanded in order to allow the district court to make all necessary findings about mother's proposed schedule, which cannot be rejected unless it is found to be unreasonable. On remand, the district court must also follow the statute when evaluating mother's request for attorney fees.

STATUTE: K.S.A. 2017 Supp. 23-3301, -3301(b), -3304

Tags:  attorney fees  grandparent visitation  Reno 

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