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February 7, 2020 Digests

Posted By Administration, Monday, February 10, 2020

Kansas Court of Appeals

Civil

SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF JONES
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,309—FEBRUARY 7, 2020

FACTS: Jones was convicted of rape in 2005. As the end of his prison sentence neared, the State filed a motion seeking to have Jones civilly committed under the Kansas Sexually Violent Predator Act. As part of its petition, the State designated Dr. Sutherland as an expert witness. In that capacity, Dr. Sutherland recommended civil commitment because Jones presented an unmanageable risk of reoffending. Based on this evidence, the district court found probable cause to believe that Jones was a sexually violent predator. Larned State Hospital hired Dr. Flesher as an expert witness for Jones. It was Dr. Flesher's opinion that Jones did not meet the criteria for designation as a sexually violent predator. Given the split between the experts, the district court elected to hear testimony from Dr. Flesher. After hearing that testimony, the district court ordered Jones released and dismissed the case. The State appeals.

ISSUE: (1) Whether the district court erred by granting summary judgment to Jones

HELD: There was no procedural or statutory bar that would prevent the district court from considering a motion for summary judgment after the probable cause determination was made. In this case, summary judgment was improper because there was evidence to support the State's claim that Jones should be civilly committed. Where there were opposing expert witness positions, summary judgment was inappropriate.

STATUTE: K.S.A. 2018 Supp. 59-29a04(a), -29a04(g), 60-212, -212(d), -256

 

TORT CLAIMS ACT
HENDERSON V. MONTGOMERY COUNTY BOARD OF COMMISSIONERS
MONTGOMERY DISTRICT COURT - AFFIRMED
NO. 120,369 – FEBRUARY 7, 2020

FACTS: Henderson picked up Garcia, who was hitchhiking. Unbeknownst to Henderson, Garcia was fleeing authorities after shooting a police officer in Oklahoma. Once law enforcement located Garcia, a chase ensued. Henderson attempted to let Garcia out of his truck, but Garcia exited shooting. Deputy Grimes returned fire, and Henderson was hit in the neck. He sued both Deputy Grimes and the Montgomery County Board of Commissioners for negligence. Both defendants moved for summary judgment, claiming that the public duty doctrine prevented any liability for either defendant. They also claimed that they were entitled to immunity under the discretionary function exemption to the Kansas Tort Claims Act. The district court granted summary judgment on both claims, and Henderson appeals.

ISSUES: (1) Application of the public duty doctrine; (2) application of the discretionary function exception to the KTCA

HELD: Instead of determining whether a special duty applied, the court assumes without deciding that a duty existed. The discretionary function exception is still good law. Guidelines for law enforcement on how to handle a felony high-risk stop are not mandatory and are instead best practice suggestions. All of the decisions made by Deputy Grimes were discretionary. For that reason, the discretionary function exception applies to excuse him and the Board from liability.

STATUTE: K.S.A. 75-6103(a), -6104, -6104(e), -6104(n)

 

criminal 

constitutional law—criminal law—evidence—fourth amendment—statutes
state v. arceo-rojas
geary district court—affirmed
no. 119,266—february 7, 2020

FACTS: Officer stopped Arceo-Rojas for driving too long in left lane and unsafe lane change, and after completing the traffic stop detained Arceo-Rojas until a K-9 unit arrived. K-9 alert led to discovery of 54 pounds of individually packaged bags of marijuana. Arceo-Rojas arrested and charged with drug offenses. She filed motion to suppress, arguing the officer had no reasonable suspicion to stop her and later detain her for purpose of a drug sniff.  District court denied the motion, finding the officer had reasonable and articulable suspicion that Arceo-Rojas was staying in left lane in violation of K.S.A. 8-1522, and that she failed to maintain a safe distance between her car and the car behind her when she changed lanes. Arceo-Rojas convicted in bench trial as charged. She appealed, alleging district court erred in denying motion to suppress.

ISSUES: (1) Traffic stop, (2) extension of traffic stop

HELD: K.S.A. 2018 Supp. 8-1522(c) is interpreted. “Overtaking and passing another vehicle” phrase in the statute shows a legislative intent to keep multilane roads and highways open for passing. Under facts in this case, officer had reasonable suspicion that Arceo-Rojas was driving in left lane without meeting any of the four statutory exceptions. Accordingly, the traffic stop was justified and no need to address whether officer also had reasonable suspicion that Arceo-Rojas committed an unsafe lane change in violation of K.S.A. 2018 Supp. 8-1522(a), or whether officer made a “reasonable mistake” of law when he stopped Arceo-Rojas based on holding in Heien v. North Carolina, 574 U.S. 54 (2014).

       Arceo-Rojas’ comparison to State v. DeMarco, 263 Kan. 727 (1998), is not persuasive. Under totality of the circumstances  (1) Arceo-Rojas’ implausible and inconsistent travel plans, (2) use of a strong but dissipating masking odor consistent with being sprayed as officer stopped the car, (3) vehicle rented in the name of a third party, and (4) a large black duffel bag in back of the car—gave officer grounds for reasonable suspicion for both the initial traffic stop and extending the stop. District court’s denial of the motion to suppress is affirmed.

DISSENT (Arnold-Burger, C.J.): Would reverse district court’s ruling and suppress all evidence obtained after the traffic stop, at a minimum, and certainly after Arceo-Rojas was given a warning ticket and told she was free to leave. Initial stop was unlawful. K.S.A. 2018 Supp. 8-1522(c) does not state how long a person may drive in the left lane before committing a violation, and a person of reasonable caution would not interpret Arceo-Rojas’ driving as a violation of the statute. Also, officer had no reasonable and articulable suspicion to detain Arceo-Rojas while waiting for drug dog to arrive and circle the car. The four factors cited by district court and the majority are criticized, finding none support a finding of reasonable suspicion either together or separately. Case highlights the problem with the introduction of and the overreliance on profiles of drug courier activity. Traits of a drug-courier profile as asserted by federal agents are listed, and absence in this case is noted of factors indicated by Kansas law enforcement officers as linked to highway drug trafficking. Agrees with Justice Rosen’s concurrence in State v. Schooler, 308 Kan. 333 (2018), on danger of “using the promise of freedom” to circumvent a driver’s constitutional rights.

STATUTES: K.S.A. 2018 Supp. 8-1522, -1522(a), -1522(c), -1522(c)(1); K.S.A. 2016 Supp. 8-1522(c); K.S.A. 60-404

constitutional law—criminal procedure—motions—statutes
state v. terning
chautauqua district court—affirmed
no. 119,904—february 7, 2020

FACTS: Terning entered 2008 no contest plea to aggravated kidnapping and rape. Consecutive 165-month prison terms imposed, plus 36 months postrelease supervision. Kansas appellate courts summarily dismissed Terning’s direct appeal, but mandate not issued until May 2017. That same month Terning filed motion to correct an illegal sentence, arguing he should have received lifetime postrelease supervision. State filed similar motion. Five months later Terning filed motion to withdraw his plea, arguing his plea was not knowing and voluntary because he was never informed of lifetime post-release supervision. District court denied motion to withdraw plea. Terning appealed.

ISSUE: (1) Withdrawal of guilty plea after sentencing

HELD: Under circumstances in this case, district court did not abuse its discretion in finding Terning failed to demonstrate he would not have entered his plea if he had been informed that he would be subject to lifetime postrelease supervision. Even though district court did not strictly comply with K.S.A. 22-3210 at the plea hearing, record supports district court’s finding that Terning’s plea was knowingly and understandingly made. Different conclusion reached in State v. Metzger,  (Kan.App. 2017)(unpublished opinion), rev. denied 307 Kan. 992 (2018), is distinguished. Even though Terning was unaware of lifetime postrelease supervision period when he pleaded, he was informed that he potentially faced a period of incarceration longer than his natural life, regardless of any postrelease term. And by pleading no contest to both charges he avoided an upward departure that could have resulted in an even longer prison sentence.

DISSENT (Standridge, J.): Would hold the district court erred as a matter of law in its legal conclusion that Terning failed to show manifest injustice to withdraw his plea. District court failed to advise Terning of the maximum penalty upon his no contest plea, which is a clear statutory violation of K.S.A. 2018 Supp. 22-3210(a)(2) and a due process constitutional violation. Strongly disagrees with majority’s adoption of new analytical framework which provides that due process is not violated by failure to advise a criminal defendant of applicability of a lifetime postrelease supervisory period if the combined prison sentences assigned to the defendant are not meaningfully different from life in prison. Metzger sets forth a better analytical framework. Application of factors in State v. Edgar, 281 Kan. 30 (2006), and State v. Moses, 280 Kan. 939 (2006), to facts in this case tips balance in favor of finding manifest injustice under K.S.A. 2018 Supp. 22-3210(d)(2).

STATUTES: K.S.A. 2018 Supp. 22-3210(a)(2), -3210(d), -3210(d)(1), -3210(d)(2), -3717(d)(1)(G); K.S.A. 2007 Supp. 75-5217(c)-(d); K.S.A. 2006 Supp. 22-3717(d)(1)(G), -3717(d)(2)(A); K.S.A. 21-4720(b)(2), -4720(b)(5), 22-3210, -3504

 

Tags:  Constitutional Law  Criminal Law  Criminal Procedure  Evidence  Fourth Amendment  Montgomery District Court  Montgomery District Court.  Motions Chautauqua District Court  sexually violent predators  Statutes  Tort Claims Act  Wyandotte District Court 

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January 31, 2020 Digests

Posted By Administration, Tuesday, February 4, 2020

Kansas Supreme Court

criminal

constitutional law—appeals—appellate procedure—
criminal procedure—jurisdiction—statutes
state v. smith
sedgwick district court—court of appeals dismissal of the appeal is affirmed
no. 115,321—january 31, 2020

FACTS: In two separate cases, Smith pleaded guilty to refusing to submit to a test to determine presence of alcohol or drugs. Court of appeals consolidated Smith’s direct appeals. Relying on State v. Ryce, 303 Kan 899 (2016), decided while the consolidated appeal was pending, Smith argued the district court lacked jurisdiction to render the criminal judgments. In response, State argued the court of appeals lacked jurisdiction to consider a direct appeal from a guilty plea. Court of appeals dismissed Smith’s appeal for lack of subject matter jurisdiction without considering the merits of his Ryce claim.

ISSUE: (1) Appellate jurisdiction

HELD: Court of appeals did not err when it dismissed Smith’s appeal for lack of jurisdiction. K.S.A. 22-3602 is interpreted to resolve ambiguity, finding K.S.A. 22-3602(a) explicitly provides that a defendant cannot appeal a conviction after pleading guilty. K.S.A. 22-3504 allows appeals of sentences, not convictions, and federal caselaw allowing for direct appeals after guilty pleas in certain situations is inapplicable here. Smith’s convictions may be challenged in other ways, so notions of justice do not demand appellate jurisdiction. If he had still been serving his sentence, Smith could have filed a motion under K.S.A. 60-1507 to seek relief. He can also file a motion to withdraw his plea, and if denied, court of appeals has jurisdiction to consider an appeal from that denial.

STATUTES: K.S.A. 2018 Supp. 22-3601(a), -3602(a), 60-1507(a); K.S.A. 2014 Supp. 8-1025; K.S.A. 2013 Supp. 8-1025; K.S.A. 20-3001, 22-3210(d)(2), -3504, -3601, -3602, -3602(a), 60-1507, -1507; K.S.A. 62-1701 (Corrick)

 

Kansas Court of Appeals

criminal

appellate procedure—constitutional law—evidence—fourth amendment
state v. mckenna 
reno district court—affirmed
no. 119,431—january 31, 2020

FACTS: Officer checked on a sleeping or unconscious woman (McKenna) in driver’s seat in a parked car, and then arrested her on an outstanding warrant which was discovered once officer obtained McKenna’s name and ran a warrants check. McKenna was charged with possession of methamphetamine and possession of a stimulant, based on evidence found in her clothing during booking. McKenna filed motion to suppress, arguing the officer unconstitutionally detained her without reasonable suspicion she was committing a crime. District court denied the motion, finding officer’s actions were justified as a welfare check. McKenna appealed the denial of her motion to suppress. Parties submitted supplemental briefing on issue of whether the public safety stop exceeded its lawful scope when officer asked for McKenna’s name and ran a warrants check.

ISSUE: (1) Public safety stop

HELD: Under circumstances of this case, officer did not exceed scope of a public safety stop by asking for McKenna’s name, getting a verbal response, and checking that name locally for warrants. Three-part test in State v. Gonzales, 36 Kan.App.2d 446 (2006), is satisfied in this case. Record shows officer’s actions were motivated by a desire to render aid or assistance rather than to investigate criminal activity.  

STATUTE: K.S.A. 22-2402(1)

Tags:  appeals  appellate procedure  constitutional law  criminal procedure  evidence  Fourth Amendment  jurisdiction  Reno District Court  Sedgwick District Court  statutes 

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January 10, 2020 Digests

Posted By Administration, Monday, January 13, 2020
Updated: Monday, January 13, 2020

Kansas Supreme Court

criminal 

appeals—constitutional law—criminal law—evidence—statutes
state v. jenkins
shawnee district court—affirmed
no. 118,120—january 10, 2020

FACTS: Jenkins led police on two car chases that resulted in a fatal crash. Jury convicted him of crimes including first-degree felony murder and fleeing and eluding police. Over Jenkins’ objection, district judge allowed State to introduce recordings of five calls Jenkins made while in jail using his personal identification number (PIN), finding the State sufficiently established Jenkins’ identity as one of the speakers. On appeal, Jenkins claimed the district court erred by admitting the recordings of the jail calls, arguing reliance on his PIN was insufficient to establish he was the male speaker. He also challenged the constitutionality of K.S.A. 8-1568(b)(1)(E), the option within a means of the felony fleeing and eluding statute dependent on five or more moving violations.

ISSUES: (1) Admission of jail calls; (2) constitutionality of K.S.A. 8-1568(b)(1)(E)

HELD:  Court examined cases from other jurisdictions and concluded the seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence. On record in this case, and under current Rules and cases interpreting them, district judge did not abuse his discretion by admitting the recorded calls as evidence. State proffered evidence upon which a reasonable juror could conclude that Jenkins made the recorded calls: strong circumstantial evidence that Jenkins was the caller by use of his unique PIN, supported by the content and timing of the calls.

Claim that the term “moving violations” in Kansas felony fleeing and eluding statute is unconstitutionally vague, which Jenkins raised first time on appeal, is considered, finding the statute is not unconstitutionally vague. Jenkins’ reliance on State v. Richardson, 290 Kan. 176 (2010), is criticized. Conduct underlying each of the moving violations used to convict Jenkins of fleeing and eluding and felony murder is clearly prohibited by Kansas law, and plain language of the defining statutory and regulatory provisions is clear. Jenkins’ argument for application of the rule of lenity is rejected.

STATUTES: K.S.A. 2015 Supp. 8-234b(d), -249(b), -1568(b)(1)(B), -1568(b)(1)(C), -1568(b)(1)(D), –1568(b)(1)(E), -1568(b)(2), 66-1,108(f); K.S.A. 8-262, -1508(c), -1519,  -1522(a), -1528(b), -1545, -1548,  60-401 et seq., 401(m), -404, -464, 66-1,108a

appeals—constitutional law—criminal procedure—jury instructions—statutes
state v. patterson
johnson district court—affirmed
no.118,180—january 10, 2020

FACTS: Patterson was convicted of crimes arising from an armed robbery in which a victim was killed by an accomplice. On appeal he claimed: (1) his felony-murder conviction violated due process because a jury was not required to determine he possessed a particular criminal mental state; (2) district court’s instructions and prosecutor’s voir dire comments improperly prevented jury from exercising its nullification power; (3) his hard 25 life sentence for felony murder is disproportionate to his crime in violation of Kansas and United States constitutions; and (4) use of prior convictions to elevate his sentence violated Sixth Amendment rights under Apprendi.

ISSUES: (1) Felony-murder conviction; (2) instructing jury to apply the law; (3) prosecutor’s voir dire; (4) hard 25 life sentence; (5) Apprendi challenge

HELD: Constitutional challenge to felony-murder statute, raised by Patterson for first time on appeal, is considered. Felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), does not operate as an unconstitutional conclusive presumption that invades the jury’s province. Intent to kill is not an element of felony murder. The statute expressly requires proof the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. By codifying participation in the felony as a statutory alternative for the intent and premeditation otherwise required for a first-degree murder conviction, the statute imposes a rule of law. It does not remove from jury’s consideration an intent element required by a criminal statute.

No merit to Patterson’s claim that district court’s instruction undermined the jury’s nullification power. District court’s instruction that jury had a “duty” to follow the law as set out in the instructions and that it “should find the defendant guilty” if State proved all elements of the charged offenses, was legally correct.

No merit to Patterson’s claim of error in prosecutor’s voir dire comment. It is not a misstatement of law to tell the jury to follow the law as given in the instructions.

Patterson did not show why his case is an exception to the general rule that case-specific challenges to § 9 of Kansas Constitution may not be raised for first time appeal. And his claim that a hard 25 life sentence is unconstitutional for a class of offenders (19-year olds) given the nature of his offense (those convicted of felony murder for a killing committed by another), fails to frame a valid categorical challenge to Eighth Amendment. The hard 25 life sentence is not categorically disproportionate as applied to young adults convicted of felony murder. Patterson’s reliance on Graham v. Florida, 560 U.S. 48 (2010), is misplaced.

Patterson’s Apprendi claim has been repeatedly rejected and is summarily dismissed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(d), -5402, -5402(a), -5402(a)(1), -5402(a)(2), -5402(b), 22- 3601(b)(3), -3601(b)(4) K.S.A. 21-3201 (Ensley)

criminal procedure—evidence—judges—statutes—witnesses
state v. lyman
geary district court—affirmed
no. 114,312 —january 10, 2020

FACTS: Lyman was convicted of felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. After Lyman filed his appeal, defense counsel was served with disclosure of potentially exculpatory evidence that prosecutor recalled seeing a family resembling Lyman and victim with his family in a store, and that the woman had acted aggressively toward one of the children. Lyman filed motion for new trial on this newly discovered evidence. He also requested a change of judge for post trial matters, alleging the judge had been sleeping during trial. District court held hearing and concluded the prosecutor’s recollection was not corroborated and too speculative to warrant a new trial. On appeal Lyman claimed district court erred by: (1) denying the motion for new trial; (2) excluding Lyman’s proposed expert witness (Young) for failing to satisfy test under Daubert, (3) allowing State to admit photos as evidence of Lyman’s prior bad acts; (4) sleeping during the trial; and (5) prohibiting Lyman from introducing medical records that were subject to a written stipulation. He also claimed cumulative error denied him a fair trial.

ISSUES: (1) Motion for new trial; (2) expert witness; (3) evidence of prior bad acts; (4) judicial misconduct; (5) stipulated medical records; (6) cumulative error

HELD: District court did not abuse its discretion by finding the newly discovered evidence was not of such materiality that it would likely produce a different result upon retrial. Lyman’s further argument for a Brady violation fails because the evidence was not credibly exculpatory or impeaching.

Extended discussion of “Young’s postulate,” an inferential test Young had developed and used to base all his testimony and opinions in this case. District court did not abuse its discretion by excluding Young’s testimony for failure to satisfy test in Daubert, finding Young’s inferential test was contrary to fundamental tenets of Kansas evidence law, Young’s opinions were developed for purposes of testifying for defendants charged with child abuse, and that another Kansas trial court had found Young was not credible and his medical testimony was not worthy of any belief. Court rejects Lyman’s invitation to separate Young’s opinions reached from using the inferential test from those that were not.

Under facts in case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. For evidence so similar to medical observations and conclusions at issue it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. District court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect.

Lyman’s motion for change of judge did not satisfy affidavit requirement in K.S.A. 20-4111d, and motion also fails on the merits.

Parties stipulated to the admissibility of medical records that form the basis of opinion of people for purposes of their direct and cross-examination. District court did not abuse its discretion by refusing to admit the medical records because the expert witness would not be testifying.

No errors support Lyman’s cumulative error claim.

STATUTES: K.S.A. 2018 Supp. 22-3501(1), 60-455, -455(a), -455(b), -456(b); K.S.A. 20-311d, -311d(b), 22-3501, 60-401(b), -455, -456(b)

Kansas Court of Appeals

CIVIL

EMPLOYMENT—LEGISLATORS—VICARIOUS LIABILITY
LONG V. HOUSER
CHEROKEE DISTRICT COURT—AFFIRMED
NO. 120,866—JANUARY 10, 2020

FACTS: In 2017, Houser was a state representative for the State of Kansas. His job duties required that he be in Topeka during the legislative session. The state provided Houser with a per diem for lodging and meals, plus travel expenses. After the Legislature recessed for a break, Houser spent the night in Topeka and then got in his personal vehicle to return home. During the trip, Houser crossed the center line and hit Long's car, injuring him. Long sued both Houser and the State. The State sought summary judgment, arguing that it was not liable for Long's injuries because Houser was not acting within the scope of his employment while he was traveling home from Topeka. The district court agreed, and Long appealed.

ISSUE: (1) Whether Houser was acting within the scope of his employment at the time of the accident

HELD: Vicarious liability is the idea that the losses caused by an employee's tortious conduct are passed on to the employer as a cost of doing business. Vicarious liability only exists if the employee was acting within the scope of their employment at the time the tortious activity occurred. Although it has not been used in a tort context, the "going and coming rule" applies to third-party tort liability claims as a gauge to determine whether vicarious liability exists. The facts of the case make it clear that Houser was not acting within the scope of his employment at the time of the accident. This is true even though the State reimbursed Houser for travel costs.

STATUTE: K.S.A. 2018 Supp. 75-3203(a), -3202(b), -3203(e), -6103(a)

criminal 

appeals—constitutional law—criminal law—evidence—fourth amendment—motions 
state v. daino
johnson district court—reversed and remanded
no. 120,824—january 10, 2020

FACTS: Uniformed officers responded to report of marijuana odor coming from unit in apartment complex. Daino opened door 8-10 inches and officer asked if it was OK to step in to write ticket for marijuana. Daino did not verbally respond, but opened the door further and stood out of the way. Once officers discovered evidence of significant drug activity, Daino signed consent form for search of apartment but for roommate’s room. Drug charges filed. Daino filed motion to suppress, alleging illegal search in violation of Fourth Amendment. District court granted the motion, finding any reasonable person would have construed Daino’s response to indicate consent for officers to enter the apartment, but under Kansas law implied consent was not valid. State filed interlocutory appeal. On appeal Daino challenged sufficiency of the evidence of district court’s credibility finding regarding officer’s testimony.

ISSUES: (1) Cross-appeal; (2) consent to search

HELD: Sole issue on appeal is whether Daino’s consent for officers to enter apartment and investigate was invalid because it was implied. Daino filed no cross-appeal from district court’s adverse ruling, thus cannot challenge the sufficiency of the evidence or the district court’s credibility finding.

District court’s factual findings are supported by substantial competent evidence, but its legal conclusion that Kansas law requires express, verbal consent is erroneous. While it is well established law that mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent, no Kansas Supreme Court case holds that consent must be verbal to be valid. Application of “mere acquiescence” rule by Court of Appeals panels, and subsequent Kansas Supreme Court cases, are examined and factually distinguished. Federal court cases upholding implied consent to enter a residence also are cited. Here, uncontested facts show that Daino yielded right of way to officers by his nonverbal, affirmative communication. Totality of circumstances shows that he unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate smell of marijuana.

DISSENT (Buser, J.): Under totality of circumstances, would find Daino did not unequivocally, specifically, and freely and intelligently consent to officer’s entry into the apartment. Officer’s statements to Daino were misleading, and insufficiently informed Daino of officer’s purpose in seeking entry into the apartment or of Daino’s constitutional right to refuse entry. A reasonable person would understand that Daino was silently acquiescing to officer’s claim of lawful authority to enter the apartment because officer knew there was marijuana inside and was required to issue a citation. Would affirm district court’s suppression of evidence due to Fourth Amendment violation.  

STATUTE: K.S.A. 2018 Supp. 60- 2103(h); K.S.A. 21-5709(b)(1), 65-4105(d)(17), -4107(d)(1)

appeals—contempt—criminal procedure—evidence—witnesses
state v. lamb (towner)
shawnee district court—affirmed
No. 117,861—january 10, 2020

FACTS: Lamb charged with murder of victim in car Towner was driving, and with attempted murder of Towner. For Lamb’s preliminary hearing, Lamb and Towner had been transported to courthouse together and placed in same holding cell. When called to testify and identify Lamb as the shooter, Towner refused to testify. District court held Towner in contempt and ordered confinement. Charges against Lamb were dismissed. Towner appealed the court’s order of  direct criminal contempt, arguing he was threatened into not testifying and district court erred by not holding an in camera hearing, without Lamb present, so Towner could explain why he was not testifying. State asserted the appeal was moot because Towner had completed his six-month sentence for contempt, and failed to preserve his issue for appeal.

ISSUES: (1) Mootness of the appeal; (2) preservation of issue on appeal; (3) contempt

HELD: State v. Flanagan, 19 Kan. App. 2d 528 (1994), is distinguished as a contempt citation is not a criminal conviction and does not appear on a defendant’s criminal history. But mootness doctrine does not prevent the appeal because issue may be subject to repetition.

Panel proceeds on the merits notwithstanding close call whether Towner properly preserved his claim that there was insufficient evidence to find him in contempt because judge disregarded information from prosecutor that Towner was under duress and did not provide Towner a safe environment to set forth his defense.

District court’s decision finding Towner in direct criminal contempt is affirmed. A judge has no duty to sua sponte hold an in camera hearing to determine if a witness is fearful to testify when the witness makes no such request. Towner failed to make a proffer of the evidence he wanted the court to consider, and the three federal cases he cited do not support his position. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness.

STATUTES: K.S.A. 2018 Supp. 21-5107(a), -5206; K.S.A. 60-405

appeals—criminal procedure—jurisdiction—motions—sentences—statutes
state v. mccroy
reno district court—appeal dismissed
No. 120,783—january 10, 2020

FACTS: District court sanctioned McCroy with second 180-day prison term after he violated terms of probation. State did not file motion to correct the order and instead appealed, arguing the second sanction was an illegal sentence because Kansas law only contemplates one 180-day sanction. McCroy contends there is no jurisdiction to consider State’s appeal which was not authorized by K.S.A. 22-3602 or any other appellate jurisdiction statute.

ISSUE: Appellate jurisdiction

HELD: K.S.A. 22-3504, governing post trial motions including motion to correct an illegal sentence, is not an appellate jurisdiction statute and does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court’s jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602. Different conclusion summarily reached in State v. Scherzer, 254 Kan. 926 (1994), but the sweeping jurisdictional statement in Scherzer no longer reflects the state of Kansas law. Appellate court’s jurisdiction is limited to those situations authorized by statute. State did not present its argument as a question reserved under K.S.A. 22-3602(b)(3), and panel makes no finding as to whether State’s general concerns regarding a second 180-day sanction could be raised in that context.

STATUTES: K.S.A. 2018 Supp. 21-6820, 22-3501(1), -3502, -3504(1), -3602(a), -3602(b), -3602(f), -3716; K.S.A. 22-3504, -3504(a), -3601, -3602, -3602(b), -3602(b)(3), -3603, 60-1507, -2101, -2101(a), -2101(b)

Tags:  Appeals  Cherokee District Court  Constitutional Law  Contempt  Criminal Law  Criminal Procedure  Employment  Evidence  Fourth Amendment  Geary District Court  Johnson District Court  Judges  Jury Instructions  Legislators  Motions  Shawnee District Court  Statutes  Vicarious Liability  Witnesses 

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December 20 and December 27, 2019 Digests

Posted By Administrator, Friday, January 3, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—search and seizure
State v. Chavez-Majors
butler district court—affirmed on issue subject to review and remanded
court of appeals—affirmed in part
No. 115,286—december 20, 2019

FACTS: Chavez-Majors convicted of aggravated battery while driving under the influence, based on motorcycle accident that caused injury to another person. Park Ranger first at scene requested EMS to draw blood from unconscious Chavez-Majors. District court denied motion to suppress the blood test results, finding the warrantless search was reasonable under probable cause plus exigent circumstances exception which satisfied the  three-prong test in Schmerber v. California, 384 U.S. 757 (1966). Court of appeals affirmed the denial of motion to suppress, but reversed the conviction because Chavez-Majors had not knowingly and voluntarily waived his right to jury trial. 54 Kan. App. 2d 543 (2017). Review granted on Chavez-Majors petition for review of panel’s decision affirming the denial of motion to suppress. State’s cross-petition for review of the jury trial issue was denied.

ISSUES: (1) Warrantless search—probable cause; (2) warrantless search—exigent circumstances

HELD: Court of Appeals decision regarding probable cause is affirmed. Probable cause determination is supported by Chavez-Majors driving at high rate of speed around curve and into parking lot he knew held parked cars and congregating people, and by strong odor of alcohol on Chavez-Majors’s breath.

As to whether exigent circumstances supported the warrantless blood draw, lower courts did not have benefit of Mitchell v. Wisconsin, 588 U.S. __ (2019). Because Chavez-Majors has not had a chance to fully litigate his claim under the change of law created by Mitchell, case is remanded to district court for an evidentiary hearing and district court ruling on exigency in light of Mitchell.

STATUTES: K.S.A. 2013 Supp. 8-1567; K.S.A. 22-3216

Kansas Court of Appeals

Civil

ATTORNEY PERFORMANCE—HABEAS CORPUS
BAKER V. STATE
LABETTE DISTRICT COURT—AFFIRMED
NO. 118,695—DECEMBER 20, 2019

FACTS: Baker pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. Baker had originally been charged with aggravated criminal sodomy, a charge which could have resulted in a death penalty when combined with the murder charge, but it was dismissed under the plea agreement. At the sentencing hearing, defense counsel did not present any evidence regarding Baker's mental health. Baker received a hard 20 sentence for the felony murder, plus an additional 147 months for the other convictions. All of these sentences were presumptive for Baker's convictions, but Baker received the aggravated sentence rather than the standard sentence. Baker's convictions were affirmed on direct appeal. He timely filed a K.S.A. 60-1507 motion, plus three amended motions, in which he claimed that trial counsel was ineffective for failing to ensure that his grid sentences were ordered to run concurrently and for failing to investigate his mental health issues and present mitigating evidence. The district court denied the motion after an evidentiary hearing, and Baker appeals.

ISSUES: (1) Timeliness of the K.S.A. 60-1507 motion; (2) merits of Baker's motion

HELD: The State did not raise the timeliness issue before the district court. They waived any appellate argument by not arguing timeliness in district court. The panel assumes without deciding that trial counsel's performance was deficient under the totality of the circumstances. The only issue to decide is whether trial counsel's deficient performance was so prejudicial that Baker was harmed. The district court did not correctly apply the Strickland test and did not properly evaluate the evidence. But even when the correct test is used, the district court correctly determined that no prejudice resulted from trial counsel's deficient performance.

DISSENT: (Leben, J.) Trial counsel made no argument for anything less than the maximum possible sentence. There was a great deal of evidence regarding Baker's life experiences and mental health conditions, and that could have made a difference at sentencing. Trial counsel was prejudicially ineffective for not presenting that evidence at sentencing. He would remand this case for resentencing before a different judge.

STATUTE: K.S.A. 2018 Supp. 60-1507(f)(1); K.S.A. 60-1507

criminal 

criminal procedure—sentences—statutes
state v. gibson
geary district court—sentence vacated and case remanded
No. 120,657—december 20, 2019

FACTS: When Gibson was arrested on drug charges, he misidentified himself as his brother. The brother was then arrested for failure to show up for a hearing. Relevant to this appeal, Gibson was convicted of identity theft and perjury. Presumptive sentence was probation, but district  court granted State’s motion for a dispositional-departure sentence of prison, finding the harm from Gibson’s crimes was greater than usual. Gibson appealed.

ISSUE: (1) Dispositional departure sentence

HELD: Statutory-counterpart rule discussed. K.S.A. 2018 Supp. 21-6815 provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for departure in that departure direction. Because less-than-typical harm is in list of mitigating factors but greater-than-typical harm is not included in list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. Sentence vacated and case remanded for resentencing.   

STATUTES: K.S.A. 2018 Supp. 21-6815, -6815(c)(1)(E); K.S.A. 2005 Supp. 21-4716(c)(2)(D); K.S.A. 2003 Supp. 21-4716(c)(1)(B); K.S.A. 1997 Supp. 21-4716(b)(1)(E); K.S.A. 1994 Supp. 21-4716(b)(2)(A)

constitutional law—due process—criminal procedure—probation—statutes
state v. gonzalez
sedgwick district court—remanded with directions
No. 120,179—december 27, 2019

FACTS: Following a hearing and determination of competency, Gonzalez convicted and sentenced to 52 month prison term with dispositional departure to probation for 36 months. Some seven months later he was arrested for violating probation. Noting the statutory processes for competency evaluations do not explicitly apply to probation revocation proceedings, district court revoked probation without addressing competency concerns raised by appointed counsel. Gonzalez appealed, claiming a constitutionally protected right to be mentally competent at his probation hearing.

ISSUE: (1) Probation revocation—constitutional due process

HELD: Gonzalez’ Fourteenth Amendment claim was not waived by counsel’s assertion of rights notwithstanding her failure to mention “constitution” or “due process.” Competency for due process purposes in revoking probation, an issue not yet addressed by U.S. Supreme Court or Kansas Supreme Court, is examined. The State may not revoke probation of a convicted felon who is not mentally competent at the time of the revocation hearing. In this case, district court acknowledged there were legitimate reasons to believe Gonzalez may not have been competent. The absence of a statutory procedure for competency evaluations in criminal cases after defendants have been sentenced is not a barrier to district court’s inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. District court erred in revoking Gonzalez’ probation without determining he was mentally competent. On remand, district court should determine if a retrospective competency evaluation can be done. If State agrees to forgo that accommodation, or district court determines such an evaluation is not feasible, then the revocation must be set aside with a new revocation proceeding and competency evaluations ordered if genuine competency issues remain. Due process requirements for statutory sanctions short of revocation are distinguished and not addressed.  

STATUTES: K.S.A. 2018 Supp. 22-3303, -3716(b)(2), -3716(c)(1)(B), - 3716(c)(11), K.S.A. 22-3202, -3301 et seq., -3302(1)

criminal procedure—probation—statutes
state v. tearney
wyandotte district court—affirmed
No. 120,340—december 20, 2019

FACTS: In 2014, district court imposed prison term but granted dispositional departure for 36 months’ probation. Probation revoked in 2016. In unpublished opinion, court of appeals reversed the revocation and remanded because district court erroneously believed Tearney had served two intermediate sanctions. While that appeal was pending, Legislature enacted the dispositional departure exception, K.S.A. 2017 Supp. 22-3716(c)(9)(B), on July 1, 2017. On remand, district court applied the new exception and again revoked probation. Tearney appealed, claiming the exception does not apply retroactively.

ISSUE: (1) Probation revocation—retroactive application of dispositional departure exception

HELD: K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant’s probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This exception applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. Retroactive application of the exception does not result in manifest injustice. Accordingly, the exception applies to Tearney’s 2016 probation violations even though her violations occurred before the exception took effect.

STATUTES: K.S.A. 2017 Supp. 22-3716(c)(9)(A), -3716(c)(9)(B), -3716(c)(12); K.S.A. 2014 Supp. 22-3716(c)

Tags:  Butler District Court  Constitutional law  criminal procedure  due process  Geary District Court  habeas corpus  Labette District Court  motions  probation  search and seizure  Sedgwick District Court  sentences  statutes 

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December 13, 2019 Digests

Posted By Administration, Monday, December 16, 2019

Kansas Supreme Court

Criminal 

attorneys—constitutional law—criminal law—
evidence—jury instructions—statutes
State v. Harris
Lyon district court—affirmed; court of appeals—affirmed
No. 112,883—December 13, 2019

FACTS: Harris held victim for two hours, repeatedly forcing her to move from room to room within small apartment while demanding money. Jury convicted him of robbery, kidnapping, and criminal threat. Harris appealed on claims of trial errors and ineffective assistance of counsel. Case remanded for Van Cleave hearing, with no relief granted. In unpublished opinion, Court of appeals affirmed, rejecting the ineffective assistance claim, and finding two trial errors which were harmless both individually and collectively. Review granted on adequately briefed issues. Harris claimed insufficient evidence supported the kidnapping conviction and reasserted his claims of cumulative error and ineffective assistance of counsel. For first time on appeal, he claimed district court erred in failing to instruct on criminal restraint as a lesser included offense and failing to give unanimity instruction for kidnapping and robbery.

ISSUES: (1) Sufficiency of evidence—kidnapping; (2) jury instructions—lesser included offense; (3) jury instructions—unanimity; (4) cumulative error; (5) ineffective assistance of counsel

HELD: Forcing victim from room-to room within one-bedroom apartment constitutes a taking or confinement within kidnapping statute’s meaning under State v. Bugs, 219 Kan. 203 (1976), and Harris’ movements were not merely incidental to the robbery. No substantive basis for Harris’ claim that his two-hour holding of the victim was part of one continuous effort to get the victim’s money. Pursuant to State v. Haberlein, 296 Kan. 195 (2012), panel correctly rejected Harris’ alternative means claim that evidence failed to show he held victim with intent to facilitate flight.

State conceded a lesser included instruction was factually and legally appropriate, but panel correctly found no clear error on facts in this case.

Unanimity instruction on the kidnapping count would not have been appropriate because all of Harris’ actions were part of one unitary conduct. And no unanimity instruction was necessary on robbery count because State elected one of the two acts that could separately constitute the alleged robbery.

No reversal on cumulative effect of district court’s error of instructing on criminal restraint as an alternative crime rather than a lesser included offense, and omitting the specific crime the kidnapping was meant to facilitate.

Van Cleave court found counsel’s failure to challenge the sufficiency of the charging document within 14 days after trial deprived Harris of the more-strict standard of review under State v. Hall, 246 Kan. 728 (1990), but no prejudice occurred under the “post-Hall” common-sense rule. Panel affirmed on the prejudice prong, applying State v. Dunn, 304 Kan. 773 (2016), which overruled Hall. But issue for appellate review was not the charging document’s sufficiency but whether Harris’ opportunity for a hearing under the pre-Hall standard was squandered. Following Ferguson v. State, 276 Kan. 428 (2003), the common-sense rule applies and record shows Harris suffered no prejudice.

STATUTES: K.S.A. 2018 Supp 21-5408, -5408(a), -5408(a)(2), -5420(a), 22-3201(b) -3414(3), -3502; K.S.A. 2015 Supp. 60-261 

Kansas Court of Appeals

Civil

CONSUMER PROTECTIONCONTRACTSFORUM SELECTION
KANSAS CITY GRILL CLEANERS, LLC V. THE BBQ CLEANER, LLC
JOHNSON DISTRICT COURT
REVERSED AND REMANDED
NO. 118,687
DECEMBER 13, 2019

FACTS: Kansas City Grill Cleaners, LLC, and The BBQ Cleaner, LLC entered a contract for the purchase of outdoor grill cleaning equipment and supplies. The purchase agreement contained choice-of-law and forum-selection clauses which established that venue would exist only in Bergen County, New Jersey. In August 2016, KC Grill filed suit in Johnson County against BBQ Cleaner alleging a deceptive trade practice claim under the Kansas Consumer Protection Act. Relying on the forum-selection clause, BBQ Cleaner filed a motion to dismiss. The district court granted the motion, citing the forum-selection clause. KC Grill appealed.

ISSUE: (1) Enforcement of forum-selection clause

HELD: A forum-selection clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances. The KCPA contains a venue statute which is designed to allow Kansas consumers with certain prerogatives in prosecuting a consumer protection claim. A plain reading of that statute makes it clear the legislature intended to allow Kansas consumers to file suit against non-resident companies in Kansas. The district court erred when it found the forum-selection clause in this contract was enforceable.

STATUTE: K.S.A. 50-623(b), -625, -625(a), -625(c), -638(b)

DRIVER'S LICENSE SUSPENSION
MOLINA V. KANSAS DEPARTMENT OF REVENUE
FORD DISTRICT COURT
AFFIRMED
NO. 119,766
DECEMBER 13, 2019

FACTS: Deputy Scott stopped Molina after he was seen failing to maintain a single lane and changing lanes without signaling. After the stop, the officer noticed that Molina smelled like alcohol and had slurred speech. Molina failed a series of field sobriety tests and his preliminary breath test. Molina was arrested and transported to the sheriff's office, where personnel administered the Intoxilyzer 9000 breath test after waiting the prescribed 20 minutes. Molina's sample showed an alcohol level far exceeding the allowable amount, and Molina was given notice that his driving privileges were being suspended. Molina requested an administrative hearing and then review by the district court, claiming that Deputy Scott failed to substantially comply with the Intoxilyzer testing protocol. At the district court hearing, Molina's counsel failed to subpoena Deputy Scott, so there was no testimony regarding compliance with the testing protocol. Nevertheless, Molina argued that his Intoxilyzer results were flawed because Deputy Scott did not wait the required 20 minutes before administering the test. The district court disagreed, and Molina appealed.

ISSUE: (1) Compliance with testing procedure

HELD: Substantial compliance is sufficient to satisfy the 20-minute wait requirement. There is absolutely no evidence to support Molina's claim that his waiting period was improperly cut short. Molina failed to meet his burden to prove error. Moreover, substantial evidence proves that more than 20 minutes elapsed from the start of the waiting period to when Molina actually performed the test. The district court correctly rejected Molina's claims to the contrary.

STATUTE: K.S.A. 2018 Supp. 8-259(a), -1020(h)(2)(F), -1020(q), 77-603(a), -621(a)(1), -621(c)(7), -621(d)

Tags:  attorneys  constitutional law  consumer protection  contracts  criminal law  driver's license suspension  evidence  Ford District Court  forum selection  Johnson District Court  jury instructions  Lyon District Court  statutes  Weekly20191217 

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November 15, 2019 Digests

Posted By Administration, Monday, November 18, 2019

Kansas Supreme Court

Civil

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

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

ISSUE: (1) Adequacy of jury instructions

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

STATUTES: No statutes cited.

 

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

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

ISSUE: (1) Timeliness of petition

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

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

 

Kansas Court of Appeals

 

criminal

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

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

ISSUE: Fourth Amendment—welfare check

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

STATUTES: None

 

 

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

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November 8, 2019 Digests

Posted By Administration, Tuesday, November 12, 2019

Kansas Court of Appeals

 

criminal

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

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

ISSUE: Speedy trial statute

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

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

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

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

ISSUE: Emergency aid exception to warrantless search

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

STATUTES: None

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

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

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

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

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

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

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November 1, 2019 Digests

Posted By Administration, Monday, November 4, 2019

Kansas Supreme Court

 

Civil

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

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

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

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

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

 

criminal

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

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

ISSUE: (1) Speedy trial

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

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

 

Kansas Court of Appeals

criminal

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

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

ISSUE: Duty to disclose evidence favorable to the defense

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

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

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

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September 20, 2019 Digests

Posted By Administration, Tuesday, September 24, 2019

Kansas Supreme Court

 

criminal 

constitutional law—criminal law—criminal procedure—evidence—jury instructions—restitution—verdicts
state v. gentry
saline district court—convictions affirmed, restitution vacated in part
No. 116,371—september 20, 2019

FACTS: Palacio fired a gun that killed a passenger in a passing truck. Gentry was charged with aiding or abetting by planning and fueling the encounter and directing Palacio to shoot. Jury convicted Gentry of first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. Sentencing court ordered restitution that included $3642.05 for State’s trial preparation and witness expenses. On appeal, Gentry claimed district court erred by: (1) not instructing jury on unintentional but reckless second-degree murder, reckless involuntary manslaughter, and voluntary manslaughter as lesser included offenses of first-degree murder;  (2) not instructing jury on attempted unintentional but reckless second-degree murder, attempted reckless voluntary manslaughter, and attempted voluntary manslaughter as lesser included offenses of attempted first-degree murder; (3) instructional error that denied Gentry his constitutional right to a fair trial; (4) denying Gentry’s motion for continuance for additional time to secure the firearms expert in Palacio’s trial; and (5) ordering Gentry to pay $3642.05 in restitution to Saline County Attorney’s office for expenses related to witnesses and preparation of photographic trial exhibits.

ISSUES: (1) Lesser included offenses—first-degree murder, (2) lesser included offenses—attempted first-degree murder, (3) constitutional right to fair trial, (4) continuance, (5) restitution

HELD: Gentry’s requested instruction on voluntary manslaughter as a lesser included offense of first-degree murder would have been legally appropriate, but not factually appropriate where Gentry’s deliberate actions were not the actions of a person who had lost control, and an aider or abettor cannot be guilty of a crime if the primary actor did not have the requisite mental state of the crime. Because evidence would reasonably justify a jury finding that Gentry acted without an intent to kill but with knowledge that Palacio would engage in conduct dangerous to life when he gave assistance or encouraged Palacio in committing homicide, instructions on lesser included offenses of unintentional but reckless second-degree murder and reckless involuntary manslaughter would have been both legally and factually appropriate. District court erred in declining to give these requested instructions, but the error was harmless. Application of skip rule is discussed regarding situation in this case where jury split its guilty verdict between premeditated first-degree murder and first-degree felony murder.

            As held in State v. Shannon, 258 Kan. 425 (1995), and State v. Louis, 305 Kan. 453 (2016), attempted unintentional but reckless second-degree murder and attempted reckless involuntary manslaughter are not recognized offenses in Kanas, and thus would have been legally inappropriate instructions. An instruction on attempted voluntary manslaughter would have been legally appropriate, but not factually appropriate where  evidence did not support a finding that Gentry acted in the heat of passion, and Gentry failed to explain how facts in the case might support finding that Palacio acted in the heat of passion.

            Constitutional claim raised for first time on appeal is not reviewed.

            No abuse of district court’s discretion in denying motion for continuance.

            District court could have taxed Gentry for the photocopying and witness expenses as court costs, but instead specifically ordered reimbursement of these expenses as restitution. This was a legal error and an abuse of discretion. That portion of restitution order is vacated.    

STATUTES: K.S.A. 2018 Supp. 21-5109, -5202(c), -5210(a), -5301, -5403(a)(2), -5404, -5405(a)(1), -6604, -6604(b)(1), 22-3414, 28-172a, -172a(d); K.S.A. 22-3801, -3801(a), 60-455

 

Kansas Court of Appeals

Civil

CONSTRUCTION—CONTRACTS
WHEATLAND CONTRACTING V. JACO GENERAL CONTRACTOR
JOHNSON DISTRICT COURT—AFFIRMED
NO. 120,401—SEPTEMBER 20, 2019

FACTS: Wheatland and Jaco contracted for Wheatland to perform plumbing and associated work on a commercial building in Johnson County. The contract contained a forum selection clause which stipulated that to the "extent permitted by law", venue would be in Sedgwick County. The relationship between the parties soured, and Wheatland sued Jaco in Johnson County District Court claiming breach of contract and other violations of the Kansas Fairness in Private Construction Contract Act. Jaco filed a motion to dismiss or, in the alternative, to transfer venue to Sedgwick County under the terms of the contract. The district court denied that motion, citing K.S.A. 16-1806 which requires that actions under the KFPCCA must be filed in the county where the project is located. The Kansas Court of Appeals granted Jaco's application for interlocutory review.

ISSUE: (1) Venue

HELD: The plain language of the KFPCCA does not allow parties to avoid rights or duties of the act through contractual terms. The clear language of K.S.A. 16-806 requires that venue for a lawsuit must be in the county where the real property is located. Venue selection is a "right or duty" under a contract, meaning the venue selection provision in the construction contract is unenforceable.

STATUTE: K.S.A. 16-1801, -1801(b), -1803, -1804, -1805, -1806

Tags:  constitutional law  construction  contracts  criminal law  Johnson District Court  Saline District Court 

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July 5, 2019 Digest

Posted By Administration, Monday, July 8, 2019

Kansas Court of Appeals

criminal

constitutional law—criminal law—fourth amendment—
probation—sentences—statutes
state v. hinnenkamp
sedgwick district court—affirmed
No. 119,125—july 5, 2019

FACTS: District court ordered Hinnenkamp to submit to random drug and alcohol testing as a condition of probation for her aggravated escape from custody conviction. Hinnenkamp appealed, arguing K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates her federal and state constitutional right against unlawful search and seizure. State responds on merits of this argument, and also claims this issue is improperly raised for first time on appeal, jurisdiction is lacking because the issue is not ripe for consideration, and Hinnenkamp waived the issue by inadequate briefing.

ISSUES: (1) Threshold issues—preservation, ripeness, waiver; (2) constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6)

HELD: Hinnenkamp is asserting her constitutional claim for first time on appeal, but her facial challenge to the constitutionality of the statute is considered. Her facial challenge to the statute is ripe for appeal, and she has not waived or abandoned her constitutional claim based on inadequate briefing.

K.S.A. 2018 Supp. 21-6607(c)(6), which subjects probationers to suspicionless drug and alcohol testing, does not, on its face, violate the Fourth Amendment of U.S. Constitution or §15 of Kansas Bill of Rights. This mandatory statutory condition of probation is exempt from Fourth Amendment’s general warrant requirement because (1) special needs of the probation system make the warrant and probable cause requirement impracticable, and (2) the primary purpose of random drug and alcohol testing for probationers is distinguishable from State’s general interest in crime control. Weighing a probationer’s diminished expectation of privacy against State’s interest in promoting rehabilitation and probation compliance, and considering the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing. Two recent unpublished Court of Appeals opinions upholding the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) in similar cases are cited and reviewed.

STATUTES: K.S.A. 2018 Supp. 21-6607(c)(5), -6607(c)(6), 22-3717(k)(2); K.S.A. 2014 Supp. 8-1025

Tags:  8807  Constitutional Law  Fourth Amendment  Probation  Sedgwick District 

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