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March 8, 2019 Digests

Posted By Administration, Monday, March 11, 2019

Kansas Supreme Court

Criminal  

criminal law—criminal procedure—jury instructions—statutes
state v. blansett
sumner district court—affirmed
no. 115,634—march 8, 2019

FACTS: Blansett convicted of first-degree premeditated murder and aggravated assault in stabbing son to death while she was in a psychotic episode. She appealed, claiming error in the jury instructions and arguing premeditation is a culpable mental state that can be negated by mental disease or defect defense. She also alleged prosecutorial error, and claimed cumulative error denied her a fair trial. Supplemental briefing ordered to address impact of State v. McLinn, 307 Kan. 307 (2018), which rejected the crux of Blansett’s claim of instructional error. Blansett then argued the jury instructions prevented jury from considering how evidence of her mental disease or defect affected her ability to premeditate. 

ISSUES: (1) Jury Instructions—Mental Disease and Defect; (2) Prosecutorial Error; (3) Cumulative Error 

HELD: The inclusion of premeditation in the challenged jury instruction was technically a misstatement of the law set forth in McLinn, but not reversible error And contrary to Blansett’s new arguments, the jury instructions as a whole did not prevent the jury from considering how her mental disease or defect affected her ability to premeditate. 

Three claims of prosecutorial error are examined. First, applying principles in State v. Williams, 299 Kan. 911 (2014), prosecutor did not suggest Blansett bore the burden of disproving the crimes charged when prosecutor told jury that defense had power to introduce evidence that defense counsel had inferred the State was hiding. Second, viewing State’s argument as a whole, prosecutor did not misstate evidence of Blansett’s intent with the knife. And distinguishing State v. Marks, 297 Kan. 1131 (2013), no error for prosecutor to argue that the nature of the weapons used and the multiple stab wounds were circumstantial evidence of premeditation.  Third, prosecutor misstated evidence by mistakenly commenting that Blansett had testified, but this error was harmless under facts in this case. 

Cumulative error doctrine does not apply to a single instance of prosecutorial error.

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

DISSENT (Beier, J.): Reiterates her dissent in McLinn. Would hold the inclusion of “premeditation” in the challenged instruction as an element of first-degree murder whose existence could be defeated by proof of Blansett’s psychosis was a correct statement of law.

The narrow definition of culpable mental state supplied by the instructions as a whole prevented jury from considering Blansett’s undisputed contemporaneous psychosis as competition for State’s evidence of her actions from which the jury might infer the existence of premeditation. Would hold this error was significant enough to reverse the first-degree premeditated murder conviction, vacate the sentence, and remand for further proceedings.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 5202(a), -5209

criminal law—criminal procedure—jury instructions—statutes
state v. murrin
clay district court—affirmed
court of appeals—affirmed
No. 115,110—march 8, 2019

FACTS: Murrin charged with drug offenses, criminal trespass, and interference with law enforcement. He requested a voluntary intoxication instruction for the drug-related charges, which the district court granted. Jury found Murrin guilty on all charges. Murrin appealed, claiming in part that although he had not requested it, district court should have instructed jury on voluntary intoxication as a defense to charges of criminal trespass and interference with law enforcement. Court of Appeals affirmed in unpublished opinion, finding criminal trespass and interference with law enforcement were both general intent crimes for which a voluntary intoxication instruction was not legally appropriate.  Review granted on this one issue.

ISSUE: (1) Jury Instruction—Voluntary Intoxication

HELD: Statutory and caselaw history concerning “intent” and “knowledge” is reviewed. Aggravated battery conviction in State v. Hobbs, 301 Kan. 203 (2015), is cited as illustrating both the shift in meaning of “intentionally” and the change in what it means to be a general intent crime. A voluntary intoxication defense is available under K.S.A. 2018 Supp. 21-5205(b) when a defining mental state is a stand-alone element separate and distinct from the actus reus of the crime.  In this case, the district court erred by not instructing on voluntary intoxication as a potential defense for both crimes. Criminal trespass is a classic specific intent crime because the statute requires a stand-alone particular intent or other state of mind as a necessary element—Murrin must know he was not authorized or privilege to enter or remain. The statute defining interference with law enforcement prescribes no such stand-alone particular intent or other state of mind as a necessary element, but the instruction given for this crime arguably set one up as necessary to convict—Murrin knew or should have know the officer was a law enforcement officer. Nonetheless, under facts in this case, the district judge’s failure to give a voluntary intoxication instruction did not rise to clear error. The convictions are affirmed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(b), -5202(h), -5202(i), -5205(b), -5414(a)(2), -5807(a)(1), -5808(a)(1)(A), -5812, -5812(1), -5904(a)(3), 22-3414(3); K.S.A. 21-3201(a), -3208(2)

criminal procedure—motions—statutes
state v. roberts
anderson district court—affirmed
No. 117,450—march 8, 2019

FACTS: Roberts pled no contest to rape of child under age of 14. Hard 25 year prison sentence imposed. Prior to his plea, a court ordered evaluation established that Roberts was competent. Years later Roberts filed motion to correct an illegal sentence, claiming he had never admitted he was older than 18 or that the victim was under 14 at time of the crime. District court denied the motion, finding both ages were established in the record. Roberts appealed. He conceded summary denial was appropriate on the age issue, but argued he was still entitled to relief because noncompliance with the statutory procedures for determining pre-plea competency deprived the district court of jurisdiction to sentence him.  

ISSUE: (1) Motion to Correct Illegal Sentence

HELD: District court’s summary dismissal of the motion to correct an illegal sentence is affirmed. Roberts does not advance a substantive competency claim.  A merely procedural failure to comply with competency statute, K.S.A. 2017 Supp. 22-3202, is not jurisdictional, thus a motion to correct an illegal sentence is foreclosed. And on facts in this case, even the existence of a procedural flaw is far from clear. Although the judge did not make an explicit competency finding in open court, the competency issue appears to have been resolved by the district judge after the evaluation was ordered.  

STATUTES: K.S.A. 2017 Supp. 22-3302, -3504(2); K.S.A. 21-3502(a)(2), 22-3302(1), -3302(3), -3504

Tags:  Anderson District  Clay District  Mental Disease and Defect  motions  statutes  Sumner District  voluntary intoxication  Weekly20190312 

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February 22, 2019 Digests

Posted By Administration, Monday, February 25, 2019
Updated: Monday, February 25, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF INDEFINITE SUSPENSION
IN RE LINDA S. DICKENS
NO. 119,198—FEBRUARY 22, 2019

FACTS: A hearing panel determined that Dickens violated Kansas Rules of Professional Conduct 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 1.8(e) (providing financial assistance to client); 1.16 (termination of representation); 3.2 (expediting litigation); 5.1 (responsibilities of partners, managers, and supervisory lawyers); 8.3(a) (reporting professional misconduct); 8.4(a) (misconduct); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). While representing a client, Dickens loaned the client $20,000 at 8.99% interest. After acknowledging that violation of the KRPC, Dickens entered the Kansas attorney diversion program. As part of that agreement, Dickens agreed to complete 16 hours of continuing legal education, including 6 hours of ethics. She failed to complete the required hours. The diversion was revoked in 2017 after Dickens had two new complaints filed against her. These complaints included allegations of entering a contingent fee arrangement without a written agreement and threatening clients when they did not give her money that was not earned. Dickens also had a pattern of missing deadlines.

HEARING PANEL: The hearing panel found that Dickens' violations were both knowing and negligent. In addition to several aggravating factors, the panel determined that there were mitigating factors, including Dickens' mental health. The disciplinary administrator recommended discipline ranging from a one-year suspension to disbarment, depending on which factual findings were made by the panel. Dickens asked that she be placed on probation and the panel agreed, finding that significant mitigating factors were compelling. The panel recommended a two-year suspension underlying a two-year term of probation.

HELD: Dickens did not contest the underlying factual allegations. Unlike the hearing panel, the Court was not persuaded that Dickens' underlying health conditions warranted probation in this case, where some of Dickens' actions involved dishonest conduct. Because Dickens showed bad faith and selfish motives when dealing with clients and the court, the Court determines that the appropriate discipline is an indefinite suspension with eligibility for reinstatement coming after three years. 

 

CIVIL

EVIDENCE—SEX OFFENDER TREATMENT
IN RE CONE
CLAY DISTRICT COURT—
AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 116,801—FEBRUARY 22, 2019

FACTS: In 2012, Cone was convicted of aggravated indecent solicitation of a child. Prior to his release from prison, the State sought to have him involuntarily committed as a sexually violent predator. During the trial on that motion, the State planned to have an expert witness testify about Cone's results on the Static-99R and Static-2002R tests, which are actuarial tools that attempt to measure an offender's risk of recidivism. Cone challenged the admissibility of the test results on grounds of relevance and reliability. The district court applied the Daubert standard and admitted both test results, in addition to other testimony. A jury found that Cone qualified as a sexually violent predator subject to involuntary commitment. The court of appeals affirmed that finding, holding that the district court did not abuse its discretion by admitting expert testimony about the actuarial tests. The Supreme Court then granted Cone's petition for review.

ISSUES: (1) Admissibility of expert testimony; (2) sufficiency of the evidence

HELD: In the absence of a cross-appeal, the court will presume that Daubert is the appropriate test for evaluating challenges to actuarial tools in a sexually violent predator case. Cone does not challenge the experts' qualifications and focuses only on the determination that the tests are reliable. After considering the Daubert factors, the court agrees that the district court did not abuse its discretion by admitting the expert testimony. Experts testified at Cone's hearing that he meets the diagnostic criteria for pedophilic disorder, and there was sufficient evidence to support that conclusion. This diagnosis allows for a finding that Cone is a sexually violent predator.

STATUTES: K.S.A. 2017 Supp. 59-29a02(b), 60-456(b); K.S.A. 2014 Supp. 60-456(b); K.S.A. 2011 Supp. 59-29a06(c)

 

JURISDICTION—SERVICE
SCOTT V. EWING
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,730—FEBRUARY 22, 2019

FACTS: Scott claims she was injured by fireworks during an Independence Day celebration in 2015. On June 30, 2016, Scott filed suit against Ewing, who hosted the event. Ewing answered, denying liability and raising a defense of comparative fault. On July 4, 2017, two years after the injury, Scott electronically filed a motion to amend her petition in order to add additional defendants. The district court allowed the amendment and Scott served the additional defendants in August 2017. The defendants moved to dismiss, claiming the statute of limitations barred recovery because Scott's actual motion to amend was not filed until July 5, 2017, after expiration of the statute of limitations. The district court granted the motion to dismiss, finding that the statute of limitations expired before Scott served the amended petition in August 2017. The court of appeals permitted an interlocutory review of this ruling.

ISSUES: (1) Expiration of the statute of limitations; (2) tolling of the statute of limitations

HELD: Although Scott was injured on July 4, 2015, the statute of limitations did not expire until July 5, 2017, because K.S.A. 60-206 extends the deadline until the next day that is not a holiday or weekend. The district court did not rule on Scott's motion to amend her pleading until after the statute of limitations had expired. K.S.A. 60-215(a) does not address how to handle this situation. The statute of limitations was tolled while the district court decided how to rule on Scott's motion to amend. The district court took more than 30 days to rule on the motion, and Scott should not be penalized for that delay.

STATUTES: K.S.A. 2017 Supp. 60-203(a), -206, -206(a)(1)(C), -206(a)(4)(A) -215(a), -215(a)(1), -215(a)(2); K.S.A. 60-513(a)(4)

Tags:  attorney discipline  Clay District  Wyandotte District 

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