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August 23, 2019 Digests

Posted By Administration, Monday, August 26, 2019

Kansas Supreme Court

Civil 

DRIVERS LICENSE—DUE PROCESS
CREECY V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
COURT OF APPEALS—
AFFIRMED IN PART AND REVERSED IN PART
NO. 117,035—AUGUST 23, 2019

FACTS: It is undisputed that law enforcement had probable cause to arrest Creecy for DUI. Creecy showed signs of a medical emergency, and EMS was called, but he momentarily recovered. Law enforcement gave Creecy the implied consent advisories, both orally and using the DC-70 written form. Creecy attempted to give a breath sample but was unable to produce enough air to register a sample. After the second failure, the officer told Creecy that his inability to provide a sample constituted a failure. The officer completed the notice of suspension form—the DC-27—and Creecy was arrested. Creecy requested an administrative hearing, paying the statutorily-required $50 fee. The ALJ affirmed the suspension, and Creecy petitioned for review. The district court affirmed the ALJ and Creecy appealed, claiming that his failure to complete the test was caused by a medical condition, that both the implied consent advisory and the notice of suspension were statutorily insufficient, and that the required $50 is facially unconstitutional. The court of appeals affirmed the district court. Creecy's petition for review was granted.

ISSUES: (1) Constitutionality of mandatory fee; (2) adequacy of service; (3) whether failure equaled refusal; (4) adequacy of implied consent advisory

HELD: There is no statutory provision for a waiver of the $50 fee that must be paid in advance of an administrative hearing. A driver's license is an interest which entitles the holder to procedural due process protections before revocation or suspension. Where fundamental rights are implicated, allowances should be made for indigent litigants. The lack of such allowances here creates a barrier to due process. Accordingly, the $50 fee is unconstitutional on its face. Evidence shows that Creecy was given the DC-27 form before being transported to the hospital. That is adequate to show that Creecy received adequate service. Creecy had the burden to show that his test failure was due to a medical condition. He did not introduce any evidence to show the cause of his failure to produce a sample. In the absence of this evidence, the district court is affirmed. The DC-70 advisory given by law enforcement substantially complied with the statute.

CONCURRENCE: Stegall, J. concurs in the result

STATUTES: K.S.A. 2014 Supp. 8-1001(a), -1001(b)(1)(A), -1001(k), -1001(q), -1002, -1002(c), -1012(d), -1013(i), -1020(a)(1), -1020(d)(2), -1020(o), -1020(p); and K.S.A. 77-611

DRIVERS LICENSE—DUE PROCESS
MEATS V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 116,469—AUGUST 23, 2019

FACTS: Meats was arrested for DUI. He refused to perform a post-arrest evidentiary breath test. An officer gave Meats the implied consent advisory both orally and in writing. After being released, Meats requested an administrative hearing to challenge the administrative suspension of his driver's license. The suspension was affirmed by an ALJ, and Meats appealed to district court where he argued, among other things, that the $50 fee that is statutorily required before an administrative hearing is held is unconstitutional. The district court affirmed the license suspension but agreed with Meats that the fee is unconstitutional because it lacks reasonable accommodations for indigent drivers. The issue was moot with respect to Meats, who had already paid the fee. The Department of Revenue appealed the ruling on the fee, and Meats cross-appealed the suspension of his license. Under K.S.A. 60-2101(b), the appeal was heard directly by the Supreme Court.

ISSUES: (1) Constitutionality of mandatory fee; (2) adequacy of implied consent advisory

HELD: The $50 fee imposed by K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face because it requires payment of a fee, without provision for indigency, before a motorist can obtain procedural due process during the license suspension process. The DC-70 form given to Meats substantially complies with relevant statutes. The evidence before the court shows that law enforcement complied with the statute when serving Meats with the DC-27.

CONCURRENCE: Stegall, J. concurs in the result

STATUTES: K.S.A. 2014 Supp. 8-1001(k)(4)(A), -1002(c), -1013(i), -1020(a)(1), -1020(d)(2); and K.S.A. 60-2101(b)

  

DRIVERS LICENSE—DUE PROCESS
ROSENDAHL V. KANSAS DEPARTMENT OF REVENUE
MIAMI DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
NO. 117,862—AUGUST 23, 2019

FACTS: After responding to the scene of a car accident, law enforcement asked Rosendahl to perform field sobriety tests. After she failed the preliminary breath test, Rosendahl was arrested. The Intoxilyzer test showed she was well over the legal driving limit. Rosendahl requested an administrative hearing and paid the statutorily-required $50 fee. The ALJ affirmed the suspension, finding that the officer had reasonable grounds to believe that Rosendahl was operating a vehicle under the influence. Rosendahl petitioned for review, arguing before the district court that her intoxication was due to alcohol consumption after the accident but before law enforcement arrived. After hearing evidence, the district court reversed the ALJ finding that the breath test was due to Rosendahl's post-accident alcohol consumption. The district court also agreed with Rosendahl that the $50 filing fee was unconstitutional, but found the issue moot since Rosendahl paid the fee. The Department of Revenue appealed, and under K.S.A. 2015 Supp. 8-1020(d)(2) the case was heard directly by the Supreme Court.

ISSUES: (1) Reasonable grounds to request a breath test; (2) constitutionality of mandatory fee

HELD: Rosendahl failed to raise the issue of post-accident alcohol consumption before the ALJ. Based on the totality of the circumstances, law enforcement had no duty to inquire about whether Rosendahl was drinking after the accident, especially since Rosendahl did not raise the issue herself. The district court erred by giving controlling weight to testimony concerning intervening alcohol consumption. As held in other decisions issued this day, the nonrefundable $50 fee required by K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional on its face.

CONCURRENCE AND DISSENT (Stegall, J., joined by Rosen and Johnson, JJ.): The majority correctly found that the officer had reasonable grounds to request a breath test and that the administrative hearing fee is unconstitutional. But the district court should be affirmed as being right for the wrong reason. It is clear that Rosendahl was not driving under the influence

STATUTES: K.S.A. 2018 Supp. 8-259, 77-614(b)(6); and K.S.A. 2015 Supp. 8-1001(b), -1020(d)(2), -1020(h)(2), -1020(h)(2)(A), -1020(q)

HABEAS CORPUS
LITTLEJOHN V. STATE
SEDGWICK DISTRICT COURT—Case Remanded
COURT OF APPEALS—REVERSED

NO. 115,904—AUGUST 23, 2019

FACTS: Littlejohn confessed to killing someone during a botched robbery attempt. Before trial, counsel filed a motion to determine competency and a motion to suppress. A report pronounced Littlejohn competent but cautioned that IQ testing was warranted. At trial, counsel did not mount a mental defect defense and did not request any jury instructions relating to Littlejohn's low IQ. He was convicted as charged, and those convictions were affirmed on appeal. Littlejohn filed one K.S.A. 60-1507 motion which was denied. His second 60-1507 motion is the subject of this appeal. In that motion, Littlejohn argued that trial counsel was ineffective for failing to raise a mental defect defense. The motion was denied as successive and an abuse of remedy. Littlejohn appealed, and the court of appeals reversed the district court finding that trial counsel should have investigated Littlejohn's mental defect defense. The Supreme Court accepted the State's petition for review.

ISSUE: (1) Standard for determining exceptional circumstances

HELD: K.S.A. 60-1507 specifically bars second or successive motions for similar relief on behalf of the same prisoner. Over the years, case law has allowed exceptions if the movant can prove exceptional circumstances. The test is whether Littlejohn presented exceptional circumstances to justify reaching the merits of a successive motion, factoring in whether justice would be served by doing so. Because the court of appeals used the wrong test, the case is remanded to the court of appeals.

CONCURRENCE: Nuss, C.J., Biles and Stegall, JJ, concur in the result

STATUTE: K.S.A. 60-1507

HABEAS CORPUS
NOYCE V. STATE
SEDGWICK DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED

NO. 114,971—AUGUST 23, 2019

FACTS: Noyce was convicted of capital murder but pled guilty to avoid a death sentence. He received two consecutive hard 40 sentences, to be served consecutive to an aggravated arson sentence. Noyce did not appeal this sentence. Noyce did appeal the denial of a motion to correct illegal sentence, but his sentences were affirmed. Shortly thereafter, Noyce filed an untimely K.S.A. 60-1507 motion in which he claimed ineffective assistance of counsel and multiple instances of collusion between his counsel, the district attorney and the district court. The district court summarily denied the motion as untimely and Noyce appealed. The court of appeals reversed the district court, finding that two of Noyce's claims of ineffective assistance at the plea stage raised issues that could constitute manifest injustice. The Kansas Supreme Court accepted the State's petition for review.

ISSUE: (1) Existence of manifest injustice

HELD: It was Noyce's burden to produce a record on appeal which showed error. Noyce did waive appellate rights by pleading guilty, and he also waived any claims about multiplicity. Trial counsel's advice that Noyce's sentence was not appealable was not manifestly unjust, especially in light of the fact that Noyce was potentially facing a death sentence. Withdrawing Noyce's guilty pleas would potentially open him to an eventual death sentence. The district court's summary denial of Noyce's motion is affirmed.

STATUTE: K.S.A. 22-3504, 60-1507

criminal 

criminal law—evidence—jury instructions—statutes
state v. chavez
wyandotte district court—affirmed in part,
reversed in part, vacated in part
court of appeals—affirmed
no. 115,602—august 23, 2019

FACTS: Jury convicted Chavez of aggravated burglary, stalking and criminal threat. He  appealed claiming: (1) insufficient evidence supported the stalking conviction which required the State to prove legally impossible mental states; (2) district court should have instructed jury and allowed Chavez to argue that victim had waived her right to enforce the protection from abuse (PFA) order; (3) district court failed to give jury a limiting instruction concerning the PFA because it constituted evidence of prior crimes or civil wrongs; and (3) cumulative error denied him a fair trial. In an unpublished opinion, the court of appeals reversed the aggravated burglary conviction but affirmed the stalking and criminal threat convictions. Panel found in part that Chavez was not entitled to a K.S.A. 60-455 limiting instruction regrading the PFA because the existence of the PFA was an element of the stalking charge, and did not address the implied waiver claim. Chavez’ petition for review granted.

ISSUES: (1) Stalking; (2) implied waiver of PFA; (3) limiting instruction; (4) cumulative error

HELD: Kansas stalking statute, K.S.A. 2018 Supp. 21-5427 is reviewed to understand the culpable mental states at issue. Chavez’ reliance on State v. O’Rear, 293 Kan. 892 (2012), for his legal impossibility argument is undermined by the 2011 recodification of the Kansas criminal code to include a new culpable mental state paradigm. Here, sufficient evidence supported Chavez’ stalking conviction. He knowingly confronted the victim after being served with a court order not to do so, which satisfied the reckless element of the charged crime.

The protected person under a PFA order does not have the authority to unilaterally modify the court order by waiving its restraints or consenting to its violation. Chavez was not entitled to a jury instruction on principles of implied waiver of a PFA, and such an instruction was not legally appropriate.

Similar to approach taken in State v. Sims, 308 Kan. 1488 (2018), petition for cert. filed April 29, 2019, court will assume the PFA falls within ambit of the 60-455 requirement for a limiting instruction, but no showing the failure to give a limiting instruction in this case was clearly erroneous.

Error that led to the reversal of Chavez’ aggravated burglary conviction, combined with assumed limiting instruction error, did not create substantial prejudice that denied Chavez a fair trial.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(b, -5202(c), -5427, -5427(a)(3), -5427(b)(1)-(3) -5427(c), -5427(f)(1), -5427(f)(1)(B), -5924, 22-3414(3), 60-455, -3107(f); K.S.A. 21-3201, -3201(b), 60-3101(b)

criminal procedure—sentences—statutes
state v. hambright
sedgwick district court—reversed and remanded
court of appeals—reversed on issue subject to review
no. 115,259—august 23, 2019

FACTS: Hambright entered a guilty plea to felony criminal damage to property and misdemeanor theft. Presumed probation period for Hambright’s severity level 7 felony was 24 months, but the district court imposed a 36-month probation term with $60,000 in restitution. Hambright appealed, arguing in part his sentence was illegal because the district court used K.S.A. 2018 Supp. 21-6608(c)(5) for severity level 8-10 crimes to increase the probation term. In an unpublished opinion, the court of appeals in part agreed that 21-6608(c)(5) did not apply to Hambright’s conviction, but found the increased probation term was within the district court’s discretion under K.S.A. 2018 Supp. 21-6608(c), and the departure sentencing procedures in State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000), for increased probation terms no longer applied. Hambright’s petition for review granted.

ISSUE: (1) Departure sentence—increased term of probation

HELD: Panel’s analysis of Whitesell is criticized and reversed. District court’s imposition of an extended term of probation beyond the presumptive 24 months for Hambright’s conviction constitutes a departure that must be supported on the record by substantial and compelling reasons. Matter is remanded to district court for resentencing on the duration of probation under the correct legal standard.  

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., -6803(f), -6803(i), -6803(o), -6803(q), -6608, -6608(c), -6608(c)(1)(B), -6608(c)(2), -6608(c)(5), -6608(c)(6) -6608(c)(7), -6608(c)(8), -6815(a), -6815(b), -6817(a)(3); K.S.A. 2000 Supp. 21-4611; K.S.A. 1999 Supp. 21-4611(c)(1)(B), -4716; K.S.A. 22-3504; K.S.A. 21-3438(a), -4703(i) (Furse 1995)

Kansas Court of Appeals 

CIVIL

CIVIL PROCEDURE—TORTS
FLOREZ V. GINSBERG
DOUGLAS DISTRICT COURT—AFFIRMED IN PART, 
REVERSED IN PART, REMANDED
NO. 120,129—AUGUST 23, 2019

FACTS: Florez was admitted to the KU School of Education to pursue a Master's degree with an endorsement in Teaching English to Speakers of Other Languages. He successfully completed the coursework and received his Master's degree. From the time Florez applied to the school to the time he graduated, the KU School of Education website read that the coursework in the degree program "fulfills the requirement for the degree and a Kansas initial teaching license." This was incorrect—the coursework did not meet the qualifications necessary to obtain an initial teaching license in Kansas. After graduation, Florez learned for the first time that he did not meet the requirements for a teaching license. He would need to enroll in an additional two-year program and pay in excess of $10,000 to get the certification. His advisor and other school leadership disagreed with Florez that the website represented that Florez would graduate and meet the requirements for a teaching license. However, the next day, the website was changed that the language upon which Florez allegedly relied was removed. Florez sued, claiming common-law negligence plus violations of the Kansas Consumer Protection Act. All defendants sought dismissal, arguing that Kansas does not recognize a tort of educational malpractice. The district court agreed and dismissed Florez's petition. He appeals.

ISSUES: (1) Negligence; (2) negligent misrepresentation; (3) Kansas Consumer Protection Act; (4) motion to alter or amend

HELD: It is undisputed that Kansas does not recognize a tort of educational malpractice. But Florez's claim does not relate to the quality of the education provided. Instead, it focuses on whether the University knowingly placed false information on its website. The nature of Florez's claim means it is not one for educational malpractice. Florez's petition states an actionable claim of negligent misrepresentation and should not have been dismissed by the district court. A cause of action under the KCPA accrues when the harm is first suffered, whether the consumer recognizes the harm or not. Florez first became aggrieved when he relied on the school's website and enrolled in the program. A new cause of action under the KCPA arose any time he relied on the website. Florez must be given the opportunity to develop a record to show whether he suffered legal harm in the three years preceding the filing of his petition. The district court did not abuse its discretion by denying Florez's motion to alter or amend.

STATUTES: K.S.A. 2018 Supp. 50-626(b)(5); K.S.A. 50-634, 60-512(2)

OIL AND GAS UNITIZATION
LARIO OIL & GAS COMPANY V. KANSAS CORPORATION COMMISSION
SCOTT DISTRICT COURT—AFFIRMED
NO. 120,121—AUGUST 23, 2019

FACTS: Lario owns and operates working interests in several wells. Lario applied to the KCC for unitization and unit operations for one unit. Most of the working interest and royalty holders approved of unitization, but some did not, and they filed a protest to the application. After hearing extensive witness testimony, the KCC denied Lario's application to unitize. The KCC specifically found that Lario did not meet its burden to show that the proposed unit constituted a single-pressure system. Lario appealed to the district court, which affirmed the KCC, finding substantial competent evidence in the record to support the KCC's finding that Lario failed to establish a single-pressure system. Lario appealed.

ISSUES: (1) Whether the KCC misapplied the law; (2) existence of substantial competent evidence to support unitization; (3) whether KCC orders are arbitrary and capricious

HELD: The KCC did not improperly require full communication between pressure systems. It properly interpreted and applied the statutes when denying Lario's application. The witnesses who testified against unitization had experience and expertise on which the KCC could have relied. The KCC properly considered all of the evidence and weighed it when making a decision. The KCC's decision was not arbitrary or capricious.

STATUTES: K.S.A. 2018 Supp. 77-621(c)(8), -621(d); and K.S.A. 55-1302, -1302(b), -1304(a)(1), -1304(a)(2)

criminal

appeals—criminal procedure—sentences—statutes
state v. chardon
douglas district court—reversed
No. 119,464—august 23, 2019

FACTS: Chardon stipulated to violating terms of his probation, and was held in jail for 65 days awaiting disposition hearing. District court imposed 60-day jail sanction and extended probation for 12 months. District court refused Chardon’s request to credit the 65 days awaiting disposition toward the 60-day sanction, and instead ordered the sanction to begin from date of disposition with the 65 days credited toward the underlying sentence. Chardon appealed.

ISSUES: (1) Mootness; (2) jail sanction for probation violation

HELD: Chardon’s sentencing claim is moot because he had already served the 60-day sanction, but issue is considered because the question is capable of repetition and is of public interest.

Rule of lenity applies. Following State v. Petz, 27 Kan. App. 2d 805 (2007), and considering how the Kansas Legislature created the 60-day sanction, Chardon should have received credit for the 65 days served awaiting disposition of a probation violation.

STATUTES:  K.S.A. 2018 Supp. 21-6604(a)(3), -6615(a), 22-3716(c)(1)(B)-(E), -3716(c)(11); and K.S.A. 2017 Supp. 22- 3716(c)(11)

Tags:  Douglas District  Scott District  Weekly20190827 

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June 21, 2019 Digests

Posted By Administration, Monday, June 24, 2019

Kansas Supreme Court

Criminal

CONSECUTIVE SENTENCES
STATE V. DARRAH
MCPHERSON DISTRICT COURT - AFFIRMED
NO. 117,461—JUNE 21, 2019

FACTS: Darrah and two co-conspirators were implicated in the kidnapping and murder of an associate. He pled no contest and the parties made a sentencing recommendation. Before sentencing, Darrah asked the district court to impose concurrent rather than consecutive sentences, claiming that his culpability was less than his coconspirators' and that concurrent sentencing would make his sentence commensurate with his level of involvement in the crime. At sentencing, the State requested both the aggravated number for the kidnapping charge and that the sentence run consecutive to the murder sentence. Darrah asked for mitigated numbers with concurrent sentencing. The district court imposed a hard 25 for the murder charge and the aggravated sentence for kidnapping, to run consecutive to the murder sentence. Darrah appealed.

ISSUE: (1) Abuse of discretion with sentencing

HELD: The facts presented at trial show that Darrah was central to the conspiracy and acted as a leader in committing the crimes. A reasonable person could have concluded that the sentence imposed was proportionate to the harm and culpability associated with Darrah's actions. For these reasons, the sentence imposed by the district court was not an abuse of discretion.

STATUTE: K.S.A. 2018 Supp. 21-6815(c)(2)(H), -6819(b)

 

Kansas Court of Appeals

Civil

INTERMEDIATE SANCTIONS
STATE V. DURAN
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 119,303 AND 119,304—JUNE 21, 2019

FACTS: Guadalupe Duran was sentenced to probation in two cases. For each case, there was a lengthy underlying sentence. Duran stipulated to violating his probation. Both Court Services and the State asked the district court to impose Duran's underlying sentence. Instead of imposing a graduated, intermediate sanction the district court found that "public safety" would be negatively impacted by reinstatement, and it ordered Duran to serve his underlying sentences. Duran appealed.

ISSUE: (1) Failure to impose intermediate sanctions

HELD: A district court is given statutory authority to bypass intermediate sanctions only in limited circumstances. In order to make that bypass, the district court must establish with particularity the reasons for finding that public safety will be negatively affected or that the offender's welfare will not be served by the intermediate sanction. Those particularized findings must be more than a general finding that the offender is not amenable to probation. Here, the district court's findings were based on speculation and generalized predictions without connection to the particular facts of Duran's case. The district court abused its discretion by revoking probation without setting forth with particularity reasons which justified the refusal to impose an intermediate sanction.

STATUTE: K.S.A. 2018 Supp. 22-3716(c)(1), -3716(c)(9)(A)

 

RACE-BASED POLICING
STATE V. GILL
RENO DISTRICT COURT—AFFIRMED
NO. 119,986—JUNE 21, 2019

FACTS: Law enforcement went to an apartment complex to investigate a reported theft. There was no suspect description and the officer was not looking for anyone in particular. The officer spotted Gill and a passenger in an SUV; both men were African-American. When Gill attempted to leave, the officer told him that he was not free to go. Despite no evidence of wrongdoing, the officer asked for Gill's driver's license and proof of insurance. Eventually, officers searched Gill's vehicle and discovered evidence of drug activity. After he was charged, Gill moved to suppress the evidence from his vehicle, alleging that the officer unreasonably used race-based policing when initiating the encounter with Gill. The district court agreed and suppressed the evidence. The State appealed.

ISSUE: (1) Admissibility of evidence in light of race-based policing

HELD: This case does not involve normal Fourth Amendment inquiries; exclusion was granted because the district court found that law enforcement violated K.S.A. 2018 Supp. 22-4609. The district court correctly determined that approaching two African-American men because they are "staring hard at you" unreasonably used race when deciding to initiate an enforcement action. The contact between the officer and Gill was completely unrelated to the initial theft report. And the district court's finding that the officer could not have determined whether a marijuana smell was coming from Gill's vehicle is an unreviewable credibility determination. The district court correctly concluded that the officer unreasonably used race to initiate an enforcement action and, as a result, suppressed evidence found in Gill's vehicle.

DISSENT: (Powell, J.) Body camera video showed no evidence of racial animus. Absent that, the district court erred by suppressing the evidence.

STATUTES: K.S.A. 2018 Supp. 22-4604(d), -4606(d), -4609; K.S.A. 22-3216(1)

 

DUE PROCESS—PARENTAL RIGHTS
IN RE M.S.
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,797—JUNE 21, 2019

FACTS: The State filed a child in need of care petition alleging that Mother's children were not being properly cared for in her home. The children were removed from her home and placed in DCF custody. Ultimately, the State sought to terminate Mother's parental rights. At the beginning of trial, Mother told the district court that she might need to leave early to help her mother home from a hospital. Mother finished the day but did not appear for the second day of trial. Mother told counsel that she was having transportation issues and intended to participate, but she failed to appear on either the second or third days of trial. The district court found her in "default", heard a proffer by the State, reviewed the evidence, and terminated Mother's parental rights. Mother appeals.

ISSUES: (1) Due process; (2) sufficiency of the evidence; (3) best interests of the children

HELD: Mother had a constitutionally protected, fundamental liberty interest in her relationship with her children. Mother was able to present her case-in-chief on the first day of trial. She had additional opportunities to be heard again on other days of the trial, but she chose not to attend. No evidence was presented on days that Mother was not present in court. The State had an interest in concluding the proceedings quickly so that the children had finality as soon as possible. The State had a justifiable interest in concluding the proceedings even in Mother's absence. K.S.A. 2018 Supp. 38-2269(b)(7) requires that reasonable – not effective – efforts be made towards rehabilitation. Efforts made towards rehabilitation were reasonable in this case. There was clear and convincing evidence that Mother was unfit and that that unfitness was unlikely to change in the foreseeable future. The district court did not abuse its discretion by finding that termination of Mother's parental rights was in the children's best interests.

CONCURRENCE: (Atcheson, J.) Mother chose not to appear at the last two days of her termination hearing. The State did not impede her ability to participate. Under these circumstances, Mother has no legal basis to complain about a denial of due process rights – she received all of the process she was due.

STATUTE: K.S.A. 2018 Supp. 38-2246, -2267(a), -2269(a), -2269(b), -2269(b)(7) -2269(b)(8), -2269(c), -2269(g)(1), -2271

Criminal

UNLAWFUL SEXUAL RELATIONS
STATE V. JOHNSON
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 118,380—JUNE 21, 2019

FACTS: Johnson worked as a paraprofessional educator. K.E. was a student in the district and was ordered to attend school at the facility where Johnson worked. K.E. and Johnson started flirting outside of school through social media. The relationship progressed, and the two had sexual intercourse one time. K.E. eventually told his father about the relationship, and he contacted law enforcement. After being questioned, Johnson admitted her actions to law enforcement. A jury convicted Johnson of unlawful sexual relations, one count of sexual exploitation of a child, and one count of promoting obscenity to a minor. She appealed.

ISSUES: (1) Constitutionality of K.S.A. 2015 Supp. 21-5512(a)(9); (2) sufficiency of the evidence; (3) alternative means; (4) transmission of obscene material

HELD: K.S.A. 2015 Supp. 21-5512(a)(9) prohibits consensual sexual activity when the offender is a teacher "or other person in a position of authority" employed at a school where the child is enrolled. The phrase "or other person in a position of authority" is not unconstitutionally vague; it has meaning that can be clearly understood through common understanding and practice. There was sufficient evidence to show that Johnson was in a position of authority at K.E.'s school, and he was a student enrolled at the facility. Sexual exploitation of a child is not an alternative means crime, so the State was not required to prove all of the listed means beyond a reasonable doubt. There was sufficient evidence to prove that Johnson promoted K.E.'s sexually explicit performance to arouse sexual desires. The photos and videos that Johnson sent to K.E. were "obscene material" as used in the statute. There is no requirement that the material be tangible, and digital photographs are allowable.

STATUTE: K.S.A. 2015 Supp. 21-5510(a)(1), -5510(d), -5510(2)(B) -5512(a), -5512(a)(9), -5512(d)(9)

Tags:  8807  Douglas District  McPherson District  Reno District  Sedgwick District  Shawnee District  unlawful sexual relations 

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December 21 and 28, 2018 Digests

Posted By Administration, Wednesday, January 2, 2019

Kansas Supreme Court

HABEAS CORPUS—PROCEDURE
NGUYEN V. STATE
FINNEY DISTRICT COURT—Reversed and Remanded
COURT OF APPEALS—REVERSED
NO. 112,851—DECEMBER 21, 2018

FACTS: Nguyen was convicted of multiple high-level felonies; his conviction was affirmed on direct appeal. Over the years, Nguyen filed three K.S.A. 60-1507 motions challenging various aspects of his convictions. The third motion, filed in 2012, was summarily denied by the district court as both untimely and successive. On appeal, the court of appeals agreed with Nguyen that manifest injustice required an exception to the one-year time bar on the motion. Two of Nguyen's co-defendants had one of their convictions reversed, and it appeared that Nguyen was similarly entitled to relief. Notwithstanding that fact, the panel determined that Nguyen failed to establish any exceptional circumstances that warranted accepting a successive motion. And although the panel appeared to agree that the district court's findings of fact and conclusions of law were insufficient, it held that Nguyen waived any insufficiency by failing to object. The summary denial was affirmed, and Nguyen's petition for review was accepted.

ISSUES: (1) Compliance with Supreme Court Rule 183(e); (2) successive motion; (3) adequacy of findings of fact and conclusions of law

HELD: Nguyen's K.S.A. 60-1507 motion substantially complied with Supreme Court Rule 183(e). All of the required information could be obtained simply by reading Nguyen's attachments. Nguyen's motion showed exceptional circumstances which justified his failure to raise these issues in a prior 1507 proceeding. And trial counsel failed to raise an issue that was successful for Nguyen's co-defendants. Justice requires that Nguyen's conviction for conspiracy to commit kidnapping be reversed as multiplicitious. Nguyen's status as a pro se litigant, combined with the district court's summary denial of his motion, made it difficult for him to object to the district court's inadequate findings of fact and conclusions of law. Nevertheless, he filed a motion to alter or amend the judgment which specifically raised this issue. The district court's order was conclusory and did not comply with Supreme Court Rule 183. This case is returned to the district court for further proceedings.

STATUTE: K.S.A. 60-1507

criminal

state v. gonzalez-sandoval
lyon district court—affirmed
court of appeals—reversed
No. 114,894—december 21, 2018

FACTS: Gonzalez-Sandoval was convicted of aggravated indecent liberties with a child.  During jury selection he raised a Batson challenge to State’s peremptory strike of one of three potential Hispanic jurors (T.R.).  In response, State pointed to T.R.s avoidance of eye contact and failure to disclose her involvement in two cases. District court found eye contact reason insufficient, but denied the challenge finding T.R. not being truthful was a race-neutral reason.  During trial, State admitted discovering the case-specific reasons it cited were not factually correct, but said T.R. failed to disclose she was a witness in a third case. District court found T.R.’s untruthfulness was still a race-neutral reason for striking T.R., and found State honestly believed the factual basis first offered for its strike. Gonzalez-Sandoval appealed on issues including his Batson claim. A divided court of appeals panel reversed on that issue, finding circumstances showed the peremptory strike was not race neutral, and district court abused its discretion in denying the Batson challenge. 153 Kan.App.2d 536 (2017). State’s petition for review granted. 

ISSUE: Batson challenge

HELD: Batson and U.S. Supreme Court cases applying it are reviewed. Here, Gonzalez-Sandoval satisfied Batson’s first step by making a prima facie showing that the peremptory challenge was based on race. Batson’s second step satisfied by trial court’s factual finding that T.R.’s lack of candor stated a race-neutral reason for the State’s peremptory strike, and by trial court’s credibility determination that prosecutor honestly believed the information first presented to the court was true. But Gonzalez-Sandoval, by failing to provide any evidence or argument that State’s race-neutral justification was pretext, did not satisfy Batson’s third step. Judgment of court of appeals is reversed. Trial court’s judgment is affirmed.

STATUTES: None

Kansas Court of Appeals

Civil

JUDGMENT—LAW OF THE CASE
IN RE MARRIAGE OF GERLEMAN
DOUGLAS DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, and REMANDED
NO. 117,913—DECEMBER 28, 2018

FACTS: After the parties filed for divorce, the decree addressed the division of marital property, including the difficult issue of Robert's military retirement pay. That ruling was appealed, and the court of appeals remanded for clarification on the correct formula to use when dividing the amount between the parties. While the remand was pending, Robert filed for relief from the judgment by arguing that the divorce decree was void because there was no valid agreement between the parties. Robert also specifically challenged the maintenance award that was in the decree. The district court denied the voidness argument as barred by the law of the case. The district court denied Robert's claim that maintenance should be modified, holding that the decree adopted the parties' agreement on that issue. Because Robert was in arrears on maintenance, the district court held him in contempt. Robert appealed.

ISSUES: (1) Application of law of the case doctrine to a void judgment; (2) contempt finding; (3) modification of the decree; (4) ability to modify maintenance

HELD: Robert could have raised the issue of the validity of the judgment in the first appeal, but he did not. In order to avoid the bar of the law of the case doctrine, all issues – including voidness – that could have been raised in a prior appeal will not be considered in a later appeal. The maintenance and property settlement provisions of the divorce decree are valid, which means the contempt finding was also valid. The law of the case doctrine and the record on appeal show that Robert's arguments about the division of his military retirement pay are not properly before the court. There is no mention in the divorce decree that the parties reached an agreement on maintenance. For that reason, the district court erred by denying Robert's motion to modify solely on statutory grounds. The district court must consider the merits of Robert's motion to modify maintenance.

STATUTES: K.S.A. 2017 Supp. 23-2712, -2712(b)

Tags:  Douglas District  Finney District  Lyon District 

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November 21, 2018 Digests

Posted By Administration, Monday, November 26, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF ROSIE M. QUINN
NO. 119,148—NOVEMBER 21, 2018

FACTS: Quinn was found to be in violation of KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty or fitness). She was convicted of multiple federal felonies after failing to pay income taxes. Quinn's law license was temporarily suspended after she self-reported the convictions. While that disciplinary proceeding was pending, Quinn asked to have her status changed to disability inactive status. That request was granted, with the understanding that Quinn was required to obtain an independent mental health evaluation. Quinn failed to obtain that evaluation and as a result, her license was transferred back to a temporary suspension.

HEARING PANEL: The hearing panel noted Quinn's history of discipline and the nature of her convictions. The panel also cited Quinn's mental health issues and reputation in her community as mitigating factors. The disciplinary administrator's office recommended that Quinn be indefinitely suspended with the suspension made retroactive to three years prior to the date of the final hearing report. The hearing panel noted that Quinn presented compelling evidence of rehabilitation and relied heavily on the mitigating evidence in recommending that Quinn's license be suspended for three years, with that suspension made retroactive to October 5, 2011. The hearing panel believed that Quinn should be eligible for reinstatement without further proceedings.

HELD: The court adopted the hearing panel's findings and conclusions. The only question for the court to consider is whether Quinn should be required to undergo a reinstatement hearing before being allowed to return to practice. A majority of the court held that Quinn should be indefinitely suspended with an effective date of October 2011. Before being reinstated, Quinn must complete various tasks including a bar exam review course and continuing legal education hours. A minority of the court would have disbarred Quinn.

Civil

ADMINISTRATIVE LAW—TENURE
HARSAY V. UNIVERSITY OF KANSAS
DOUGLAS DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED
NO. 114,292—NOVEMBER 21, 2018

FACTS: The University of Kansas hired Harsay to a tenure-track position in 2004. She began the tenure review process in 2009. Peer reviewers were hesitant to give unqualified recommendations for tenure; there were concerns about insufficient scholarship activities leading to an inability to secure funding. Nevertheless, the department-level committee recommended that Harsay receive tenure. The College Committee disagreed and voted to reject Harsay's application. That decision was ratified by the University Committee. Harsay appealed to the university but the chancellor upheld the decision to deny tenure. Harsay filed a timely petition for judicial review, but it was dismissed for failure to prosecute. Using the savings statute, Harsay refiled the action. The district court denied on the merits Harsay's challenge to the university's decision. The court of appeals reversed, noting inaccuracies in the College Committee's report and expressing concerns about the adequacy of the university's factual findings. The university's petition for review was granted.

ISSUES: (1) Savings statute; (2) substantial evidence

HELD: Provisions of the Code of Civil Procedure can apply to actions taken under the KJRA. And the plain language of K.S.A. 60-518 allows it to apply to any action. Although the reports of various tenure committees were short on details and contained errors, there is adequate support in the record as a whole for the ultimate decision to deny tenure to Harsay.

CONCURRENCE (Goering, D.J. assigned): There is substantial evidence in the record as a whole to support the university's decision on Harsay's tenure application. But the panel erred by finding that K.S.A. 60-518 can apply to cases brought under the KJRA.

STATUTES: K.S.A. 2017 Supp. 77-613, -621(c)(4), -621(c)(7), -621(c)(8), -621(d); K.S.A. 60-518

Criminal

constitutional law—criminal law—Fourth Amendment—statutes
state v. Evans
dickinson district court—affirmed and remanded
No. 119,458—November 21, 2018

FACTS: An officer conducted a warrantless search of Evans’ purse and wallet after an ambulance took Evans from auto accident scene. Evans was arrested and charged with drug offenses after officer found methamphetamine and drug paraphernalia in zippered pocket of the wallet. Evans filed motion to suppress, alleging the search violated the Fourth Amendment. State argued the warrantless search was valid under the plain-view exception and the officer’s administrative caretaking function of locating Evan’s driver’s license to complete an accident report. District court disagreed and granted the motion to suppress. State filed interlocutory appeal.

ISSUES: (1) Warrantless search—community caretaking function, (2) warrantless search— duty to complete accident report

HELD: District court’s judgment was affirmed. The caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Both Cady v. Dombrowski, 413 U.S. 433 (1973), and South Dakota v. Opperman, 428 U.S. 364 (1976), support caretaking/ inventory searches conducted under standard police procedures. Here, no evidence established the standard procedures of the police or county sheriff’s office. Accordingly, Dombrowski, Opperman and related cases do not support State’s contention that the search of Evan’s purse and wallet fits a well-delineated exception to the warrant requirement.

State v. Canaan, 265 Kan. 835 (1998), which relied on plain view and inventory search exceptions to the warrant requirement, did not create a new exception allowing a search simply because officers have a duty to complete the accident report. State failed to meet burden of establishing the inventory exception, and under facts in this case the drug evidence was not in plain view. Nor did the circumstances present an exigency or an emergency that required immediate verification of Evans’ identity or give rise to the emergency doctrine exception. Kansas statutes allow drivers a reasonable time to produce their own driver’s license, and legislature did not impose a duty on officers that would justify invading privacy guaranteed by Fourth Amendment.

STATUTES: K.S.A. 2017 Supp. 8-1604, -1611, -1611(a), -1611(a)(2), -1612, -1612(a), -1612(b), 22-3603; K.S.A. 8-244, 20-3018(c)

criminal law—criminal procedure—evidence—
jury instructions—prosecutors—statutes
state v. haygood
wyandotte district court—affirmed
No. 115,591—november 21, 2018

FACTS: A jury convicted Haygood of premeditated first-degree murder and criminal possession of a firearm. On appeal he claimed error in the admission of his long-term girlfriend’s testimony about prior domestic violence, and the denial of his request for jury instructions on the affirmative defense of self-defense and the lesser-included offense of involuntary manslaughter. Haygood also claimed the prosecutor, in closing argument, misstated the facts or law, argued facts not in evidence, commented on witness credibility, and attempted to shift the burden of guilty to the defendant.

ISSUES: (1) Admission of K.S.A. 60-455 evidence, (2) prosecutorial error in closing argument, (3) instructions on self-defense and involuntary manslaughter

HELD: Three-part test in State v. Gunby, 282 Kan. 39 (2006), is stated and applied, finding the trial court did not err in admitting the prior domestic violence evidence to show motive.

Prosecutor’s comments and arguments contained facts that were either placed in evidence or that were reasonably inferred from trial evidence. Although some statements were inarticulately phrased, prosecutor did not misstate the law. No burden-shifting was implied from State’s closing argument, and no merit to claim that prosecutor impermissibly accused Haygood of lying.

In light of K.S.A. 2017Supp. 21-5108(c), as amended in 2010, Haygood was entitled to an instruction on self-defense affirmative defense because his testimony was competent evidence that could allow a reasonable juror to conclude he was entitled to defend with deadly force. District court erred by denying Haygood’s request for an instruction on self-defense, but the error was harmless in this case. Likewise, even if an involuntary manslaughter lesser included offense instruction is assumed to be factually appropriate, the failure to give a lesser included offense instruction was harmless error.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Stegall, J.): Concurs with the result but departs from majority’s reasoning regarding the self-defense instruction. Disagrees that a defendant’s solitary declaration that he or she committed a crime in self-defense will always satisfy the competent evidence standard described in K.S.A. 2017 Supp. 21-5108(c). Also disagrees with majority’s suggestion that the 2010 statutory provision meaningfully impacts this analysis. Under facts in this case, no rational fact-finder could reasonably conclude that Haygood acted in self-defense. Would find no error in trial court’s denial of a self-defense instruction.

STATUTES: K.S.A. 2017 Supp. 21-5108(c), -5222, -5405(a)(4); K.S.A. 21-5108

criminal procedure—jury instructions—statutes
state v. pulliam
wyandotte district court—affirmed
court of appeals—affirmed
No. 113,493—November 21, 12018

FACTS: Pulliam was convicted of voluntary manslaughter (of Eisdorfer), second-degree murder (of Burton), and criminal possession of a firearm. He appealed, claiming in part the jury should have been instructed on a theory of imperfect self-defense involuntary manslaughter as a lesser included crime for the charge of second-degree murder. Court of appeals affirmed, holding such an instruction was not factually appropriate because State v. Houston, 289 Kan. 252 (2009), required an unintentional killing for involuntary manslaughter, and there was no evidence Pulliam’s killing of Burton was unintentional. Pulliam’s petition for review granted on this one issue.

ISSUE: Jury instruction on lesser included offense of imperfect self-defense involuntary manslaughter

HELD: Court of appeals’ decision is affirmed, but on a different rationale. Pulliam’s jury instruction claim was reviewed for clear error in this case. Court of appeals’ decision relied on outdated law because Houston was based on an earlier version of the crime defining statute. The amended involuntary manslaughter statute and a new culpable mental states statute, K.S.A. 2017 Supp. 21-5202, govern this case. Conviction of involuntary manslaughter under an imperfect self-defense manslaughter theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a reckless or unintentional killing. On evidence in this case, a lesser included offense instruction on the imperfect self-defense form of involuntary manslaughter was legally and factually appropriate. District court erred in not giving it, but no clear error found. Pulliam’s second-degree murder conviction is affirmed.

STATUTES: K.S.A. 2017 Supp. 21-5109(b)(1), -5202(a)-(j), -5203(b), -5402(a)(2), -5405(a)(1)-(4), 22-3414(3); K.S.A. 21-3201, -3201(b)-(c), -3404(c), -3761(a)(2)

Tags:  administrative law  Attorney Discipline  constitutional law  Dickinson District  Douglas District  evidence  fourth amendment  jury instructions  statutes  tenure  Wyandotte District 

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October 3 and October 5, 2018 Digests

Posted By Administration, Tuesday, October 9, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF JEAN MARIE BOBRINK
NO. 14,366—OCTOBER 3, 2018

FACTS: Jean Marie Bobrink, an attorney licensed to practice law in Kansas, voluntarily surrendered her license. At the time of surrender, there were two disciplinary complaints pending and she was operating under an active diversion agreement. Ms. Bobrink was disbarred in Missouri in January 2018.

HELD: The Court accepted the surrender and Ms. Bobrink is disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF ROBERT E. ARNOLD, III
NO. 22,544—OCTOBER 3, 2018

FACTS: Robert E. Arnold voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was being investigated by the Disciplinary Administrator. The conduct which prompted the investigation in Kansas served as the basis for Mr. Arnold's disbarment in Missouri in June 2018.

HELD: The court accepted the surrender, and Mr. Arnold is disbarred.

Civil

ADOPTION
IN RE ADOPTION OF C.L.
WYANDOTTE DISTRICT COURT–REVERSED and REMANDED
COURT OF APPEALS—REVERSED
NO. 117,723—OCTOBER 5, 2018

FACTS: C.L. was born in September 2016. Mother was not aware that she was pregnant. She placed C.L. for adoption while still in the hospital, and he was placed with custodial parents who hoped to adopt him. A social worker contacted the man who mother believed was the biological father. He was told about the baby and was asked to relinquish his parental rights. Father instead obtained counsel and sought to establish paternity; genetic testing later confirmed that father is C.L.'s biological parent. The potential adoptive parents filed an adoption petition and asked the court to terminate father's rights. Father appeared in that action and opposed adoption. The district court terminated father's parental rights, finding that father abandoned C.L. after learning of his birth. The court of appeals affirmed that finding and father's petition for review was granted.

ISSUE: (1) Sufficiency of the evidence to show support of the child

HELD: The facts established in the district court show that father made adequate efforts to support and meet his child. The putative adoptive parents made untrue allegations in their adoption petition, and the adoption petition prevented father from making efforts to support his child. This case must be remanded so that C.L. can begin to be integrated in to father's home.

STATUTE: K.S.A. 2016 Supp. 59-2921(a), -2136(h)(1), -2136(h)(1)(A), -2136(h)(1)(C), -2136(h)(2)(A), -2136(h)(2)(B)

criminal

appeals—criminal procedure—jurisdiction—statutes
state v. weekes
saline district court—Case Remanded
court of appeals—reversed
No. 115,739—october 5, 2018

FACTS: Weekes was convicted of unlawful possession of hydrocodone and sentenced to 12 months’ probation with underlying 30-month prison term. State later filed motion to revoke probation. Weeks filed motion pursuant to State v. McGill, 271 Kan. 150 (2001), seeking a reduced underlying prison term or to be allowed to serve sentences concurrently. District court revoked probation, denied the motion to modify the sentence, and imposed the original underlying sentence. Weekes appealed. In an unpublished opinion, court of appeals dismissed the appeal for lack of jurisdiction, relying on State v. Everett, No. 111168, 2015 WL 4366445 (Kan.App.2015)(unpublished), rev. denied 305 Kan. 1254 (2016), and citing K.S.A. 2016 Supp. 2016 Supp. 21-6801(c)(1). Weekes’ petition for review granted.

ISSUE: Appellate jurisdiction

HELD: Review was limited to issue of appellate jurisdiction. Logical fallacies in Everett rationale are identified. Panel had jurisdiction to review whether the district court abused its discretion in denying Weekes’ motion for a post-probation-revocation sentence modification, pursuant to K.S.A. 2017 Supp. 22-3716(c)(1)(E), even if the denial results in the imposition of an original sentence that was a presumptive sentence for the crime of conviction. The panel’s dismissal for lack of jurisdiction is reversed. Appeal was reinstated and remanded to court of appeals for consideration on the merits.

STATUTES: K.S.A. 2017 Supp. 21-6803(q), 22-3716(c)(1)(E); K.S.A. 2016 Supp. 21-6820(c)(1)

appeals—constitutional law—criminal law—criminal procedure—evidence  fourth amendment—prosecutors
state v. lowery
shawnee district court—affirmed
No. 115,377—october 5, 2018

FACTS: Related to a shooting between two vehicles on victims’ wedding night, Lowery was convicted of charges including premeditated first-degree murder of Davenport-Ray, attempted premeditated first-degree murder of Ray, and unlawful discharge of a firearm at an occupied building. On appeal, Lowery claimed: (1) prosecutorial error during trial and in closing argument; (2) he was denied his right to be present when district court held hearing on Lowery’s motion in limine and compelled a State witness to testify pursuant to grant of immunity; (3) district court erred by instructing jury on law of aiding and abetting without modifying the standard instruction; (4) his post-arrest statements to law enforcement officers were involuntary and should have been suppressed; (5) the partially redacted video recording of his interview with law enforcement officers contained inadmissible evidence; (6) prosecutor’s questions to witness went beyond the scope of defense counsel’s direct examination and elicited hearsay testimony; (7) insufficient evidence supported his convictions; and (8) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error, (2) right to be present at every critical trial stage, (3) aiding and abetting instruction, (4) voluntariness of a defendant’s statements to law enforcement, (5) failure to redact evidence from defendant’s video-recorded statement, (6) hearsay evidence beyond the scope of direct examination, (7) sufficiency of the evidence, (8) cumulative error

HELD: Defendant cannot circumvent contemporaneous objection requirements of K.S.A. 60-404 by characterizing an appellate issue as prosecutorial error rather than evidentiary error. No review of evidentiary claims that were not preserved for appeal. No abuse of district court’s discretion in denying Lowery’s motion for a new trial based on prosecutor’s comments and gestures. No error in prosecutor’s use of puzzle and picture analogies in this case which is factually distinguished from State v. Crawford, 300 Kan. 740 (2014), and State v. Sherman, 305 Kan. 88 (2016). Lowery’s claim of prosecutorial error for violating trial court’s orders in limine is unavailing. While a close call, prosecutor did not comment on witness credibility. Prosecutor improperly used “golden rule” argument in closing argument, and egregiously misstated the DNA evidence and testimony of the DNA analyst, but on facts in this case these were not reversible errors.

Kansas Supreme Court has not addressed whether an immunity hearing is a critical stage of the proceedings at which the defendant must be present, but other courts have found the defendant has no such right. However, district court violated Lowery’s statutory rights by conducting a hearing on Lowery’s motion in limine without Lowery or defense counsel present. Under facts in this case, the error was harmless.

Lowery’s instructional error claim is not reviewed because Lowery invited the error.

There is no express requirement in Miranda that a defendant be informed of the right to stop answering questions at any time and terminate the interview. Instead, this is part of the totality of the circumstances to be reviewed in the voluntariness calculus. Here, Lowery’s statements to law enforcement were freely and voluntarily made. District court’s Jackson v. Denno ruling is affirmed.

New allegations of material that should have been redacted were not preserved for appellate review. On claims properly before the court, the jury should not have heard officer comments on the possible sentence imposed if Lowery were to be found guilty, officer explanations on the law of felony murder, or statements implying that Lowery had a criminal history. But it is presumed the jury followed the instruction to not consider the ultimate disposition in this case.

Prosecutor’s questions were not outside the scope of direct examination. Officer’s testimony did not constitute inadmissible hearsay evidence, and no reasonable probability that evidence from this testimony affected the outcome of trial.

Evidence viewed in light most favorable to the State was sufficient to support Lowery’s convictions.

The three prosecutorial errors found in this case were harmless beyond a reasonable doubt, and the fairness of Lowery’s trial was not impacted by his absence at the motion hearing. Evidence against Lowery was not overwhelming, but circumstantially strong enough that cumulative effect of the errors did not deprive Lowery a fair trial.

STATUTES: K.S.A. 2017 Supp. 21-5210(b), 22-3208(7), -3501, -3601(b)(3)-(4), 60-261, 455, -455(a), -460; K.S.A. 22-3403(3), 60-404, -421, -455, -446, -447

attorneys—criminal law—criminal procedure—ethics—evidence  judges—juries—
jury instructions—prosecutors—statutes—venue
state v. miller
douglas district court—affirmed
No. 114,373—october 5, 2018

FACTS: Miller was convicted of premeditated first-degree murder of his wife. State v. Miller, 284 Kan. 682 (2007)(Miller I). In 2012 unpublished opinion, court of appeals granted Miller post-conviction relief and ordered a new trial. Kansas Supreme Court affirmed that decision. Miller v. State, 298 Kan. 921 (2014)(Miller II). On retrial, Miller again convicted of premeditated first-degree murder. Miller appealed. As structured by the court, Miller claims trial court erred by: (1) denying motion for change of venue given extensive publicity surrounding first trial and corresponding pretrial publicity on retrial; (2) denying Miller’s for-cause challenges to 10 prospective jurors who knew of Miller’s prior conviction and/or had a preconceived opinion he was guilty; (3) denying Miller’s motion to first have jury determine if victim’s death was homicide, and then have same jury determine the degree of homicide; (4) denying portion of proposed instruction that limited jury’s consideration of dating site evidence as evidence of homicide; (5) denying motion to disqualify the district attorney’s (DA’s) office based on conflict of interest with witness and because office in possession of information from Miller’s first trial that was protected by attorney-client privilege; and (6) three times advancing an interpretation of the evidence that was not supported by the record. Miller also claimed (7) that medical evidence from State’s forensic pathologist was insufficient to establish the victim had been killed by another. Miller further claimed the trial court erred by: (8) denying motions for mistrial after prosecutor mentioned pornography in violation of in limine order, and after State’s rebuttal witness testified outside the scope of permissible rebuttal; (9) admitting evidence Miller sought to exclude through motion in limine of Miller’s extramarital affair, Miller accessing dating websites, Miller being the beneficiary of wife’s life insurance policy, and graphic photographs; and (10) granting State’s motion on first day of retrial to admit Miller’s testimony in Miller I without giving timely notice of intent to introduce this prior testimony. Finally, Miller claimed cumulative error denied him a fair trial.

ISSUES: (1) Change of venue, (2) trial court’s denial of for-cause juror challenges, (3) Denial of bifurcation request, (4) denial of complete requested limiting instruction, (5) disqualification of district attorney’s office, (6) judicial misconduct, (7) state’s failure to prove a homicide, (8) denial of mistrial motions, (9) motions in limine and admissibility of evidence, (10) admission of defendant’s prior trial testimony, (11) cumulative error

HELD: Millers’ constitutional challenge to venue fails Factors identified by United States and Kansas supreme courts are reviewed and applied, finding no presumed or actual prejudice from pretrial publicity in this case. Circumstances in State v. Carr, 300 Kan. 1 (2007), are compared.

Defense arguments regarding use of peremptory challenges, and trial court’s refusal to grant for-cause challenges, are examined. Even if district court erred in refusing to strike one prospective juror (A.S.) for cause, under facts in this case there was no showing of prejudice, and no violation of Miller’s constitutional or statutory rights.

Miller’s bifurcation claim is evidentiary rather than constitutional. District court did not err in refusing to bifurcate trial by separate elements.

No showing of error in district court’s modification of the proposed limiting instruction.

Under facts in this case, which included defendant’s son living rent free with an Assistant District Attorney (ADA), and DA’s office acquiring but not disclosing possession of a day planner of Miller’s attorney in first trial, district court did not abuse its discretion in refusing to disqualify the DA’s office based on conflict of interest or DA’s unprofessional handling of the planner. Kansas Rules of Professional Conduct discussed.

Judicial misconduct claim fails. Taken in context, trial judge’s response was not erroneous, much less misconduct.

Miller did not object to State forensic pathologist’s cause-of-death opinion until basis for that opinion had been thoroughly parsed and interminably repeated through multiple examinations by both parties. Failure to make timely contemporaneous objection defeats review of the merits of this evidentiary claim.

Prosecutor’s mention of pornography was error, but error was harmless in this case. Likewise, if any error in rebuttal witness testimony, the error was harmless.

In following precedent set in Miller I, district court did not err by admitting evidence of extramarital affair for purpose of motive. Under facts in this case, probative value of detective’s testimony about Miller accessing dating websites is tenuous but any error was harmless, and no error in admitting evidence of life insurance. District court’s admission of graphic photographs is affirmed based on law of the case established in Miller I.

Trial court’s decision to allow Miller’s retrial counsel to inspect Miller I testimony and respond with arguments was a reasonable remedy of the discovery violation. Under circumstances in this case, district court did not abuse its discretion in refusing to continue or suspend the retrial for a separate hearing on State’s motion to admit the Miller I testimony.

Viewed in context of the entire record, Miller was not so prejudiced by cumulative effect of errors declared in this case as to deny him a fair trial.

DISSENT (Johnson, J.): Notwithstanding practical and emotional costs of yet another retrial that likely again would result in a conviction, Constitutions require that result to maintain integrity of our criminal justice system. Cannot condone the conviction in this case because the retrial was fundamentally unfair. Unfairness starts with retrial’s venue, citing his dissent in Carr. Allowing juror A.S. to sit on retrial jury was fundamental error. Testimony about Miller accessing dating websites had no logical connection to a relevant fact that would make it more likely that Miller killed his wife. Imprudent to apply law of the case doctrine to uphold admission of graphic photographs. And testimony of State’s forensic pathologist should have been considered in assessing impact of cumulative error.

DISSENT (Wurtz, J., appointed to hear case vice Justice Stegall): Agrees that if an erroneous expert opinion on cause of death is added to the cumulative error analysis in this case, prejudice caused by cumulative effect of all errors denied Miller a fair trial. Also agrees that expert opinion on the cause of death was not based on medical evidence but rather on the doctor’s factual determination that Miller had lied about being in the room when his wife died. Would find Miller’s objection to expert opinion on the cause of death was sufficient to preserve the question for appellate review on the merits.

STATUTES: K.S.A. 2017 Supp. 22-3212(a)(1), -3212(i), -3601(b)(3), 60-242(b), -426, -426(b); K.S.A. 2014 Supp. 60-226(b)(6)(C), -226(b)(6)(C)(ii); K.S.A. 22-2101 et seq., -2616(1), -3423(1)(c), 60-101 et seq., -404, -407(f), -445, -456, -1507

criminal law—criminal procedure—evidence—jury instructions—prosecutors
state v. anderson
bourbon district court—affirmed
No. 116,710—october 5, 2018

FACTS: Anderson was convicted of child abuse and felony murder in shaken-baby case. On appeal he claimed: (1) district court failed to give multiple acts instruction to ensure jury unanimity as to whether Anderson injured victim by throwing down on the couch or by shaking; (2) district court erroneously admitted testimony under K.S.A. 60-455 of Bodinea person who had previously lived with Anderson and wifeabout Anderson’s prior aggressive behavior toward the child victim; and (3) during closing argument the prosecutor engaged in speculation not fairly based on the evidence by suggesting Anderson believed the State’s doctors were out to get him for the fun of it, by saying Anderson was trying to manipulate jury by calling the victim his son, and by saying Anderson lost his temper which resulted in a child with massive brain injury. Anderson also claimed cumulative error denied him a fair trial.

ISSUES: (1) Refusal to give a requested unanimity instruction, (2) admission of K.S.A. 60-455 evidence, (3) prosecutorial error in closing argument, (4) cumulative error

HELD: Court reviews distinction between multiple acts and alternative means. Here, jury did not have to choose between multiple acts. District court did not err in declining to give jury a unanimity instruction.

Under facts in this case, any error district court may have made in allowing K.S.A. 60-455 testimony of Bodine about Anderson’s prior treatment of the child victim was harmless.

Prosecutor’s comments about doctors’ motives constitute error. Prosecutor arguing that jury should attribute a bad motive to Anderson referencing the victim as his son was error. And prosecutor’s remarks about Anderson losing his temper were not supported by the record, and argued facts that were contrary to the evidence. Nonetheless, under facts in this case, no reasonable possibility that the absence of prosecutor’s erroneous comments would have changed outcome of the credibility and expert battles that Anderson lost.

Cumulative error claim fails.

STATUTE: K.S.A. 2017 Supp. 22-3601(b)(3), 60-261, -455, -455(b)

Tags:  Attorney Discipline  Bourbon District  disbarment  Douglas District  Saline District  Shawnee District  Wyandotte District 

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September 14, 2018 Digests

Posted By Administration, Monday, September 17, 2018

Kansas Court of Appeals

Civil

DIVORCE — STATUTORY CONSTRUCTION
IN RE MARRIAGE OF GERLEMAN
DOUGLAS DISTRICT COURT – REVERSED AND REMANDED
NO. 118,457 – SEPTEMBER 14, 2018

FACTS: After a contentious divorce, the district court entered judgment against Robert Gerleman for back spousal maintenance owed to Jeannette, as well as judgment on Robert's previous agreement to pay Jeannette a portion of his military retirement pay. In an effort to collect past-due amounts, the district court issued orders of garnishment to Robert's employer. Robert's father was diagnosed with brain cancer in 2017, and Robert took off more than two weeks from work in order to assist his father during surgery and treatment. Citing K.S.A. 60-2310(c), Robert asked that the garnishment be released because of the illness and his inability to work. The district court refused to issue the release, and Robert appealed.

ISSUE: (1) Interpretation of K.S.A. 60-2310(c)

HELD: K.S.A. 60-2310(c) allows for a release of garnishment if the debtor is prevented from working for more than two weeks because of illness of the debtor or any family member of the debtor. Under the plain meaning of the statute, Robert's father is "any member" of Robert's family. There is no requirement in the statute that the family member be an immediate family member residing with the debtor. The affidavit submitted by Robert was sufficient to prove that he missed work for more than two weeks while caring for his father. The district court's decision is reversed, and the case is remanded for a factual determination about when the garnishment could resume.

STATUTES: K.S.A. 2017 Supp. 17-2205(a)(4)(A), 60-2310(c)

criminal

criminal procedure — motions — sentences — statutes
State v. Smith
Sedgwick District Court – sentence vacated, case remanded
No. 118,042 — September 14, 2018

FACTS: Smith convicted in 2006 of aggravated kidnapping. In 2014 he filed a K.S.A. 22-3504 motion to correct an illegal sentence, challenging the sentencing court’s criminal history scoring of a South Carolina burglary conviction as a personal felony in Smith’s criminal history. District court denied the motion and Smith appealed. In unpublished opinion the Court of Appeals vacated Smith’s sentence and remanded for resentencing. On remand, district court again found the South Carolina conviction to be a person felony, and denied Smith’s motion. Smith appealed. Issue before the panel centers on whether the holding in State v. Wetrich, 307 Kan. 552 (2018), was a change in the law that occurred after Smith was sentenced. State argued it was, and through retroactive application of the 2017 amendment to K.S.A. 22-3504, Smith’s sentence was not an illegal sentence.

ISSUE: (1) Sentencing and (2) Classification of an Out of State Conviction

HELD: Kansas Supreme Court’s decision in Wetrich was not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 2017 Supp. 22-3504(3).  Instead, the decision reinterpreted the meaning of the term “comparable offenses” within the Kansas Sentencing Guidelines Act. No final decision on whether the 2017 amendment to K.S.A. 22-3504 can apply retroactively in Smith’s case, but panel rejects State’s claim that that 2017 amendment defining an illegal sentence is jurisdictional. Here, the South Carolina burglary statute that Smith was convicted under is not identical to or narrower than the Kansas burglary statute in effect when Smith committed his current crime of conviction, thus based on holding in Wetrich, Smith’s prior South Carolina burglary cannot be scored as person felony for criminal history purposes. Sentence is vacated and case is remanded for resentencing to classify the South Carolina burglary as a nonperson felony.

STATUTES: K.S.A. 2017 Supp. 21-6810(a), -6811(d), -6811(e), -6811(e)(3), 22-3504(1), -3504(3); K.S.A. 1993 Supp. 21-4711(e); K.S.A. 21-3110(7), -3715, -4711(e), 22-3504, 60-1507(f)

Tags:  divorce  Douglas District  motions  Sedgwick District  statutory construction 

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