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September 4, 2020 Digest

Posted By Administration, Tuesday, September 8, 2020

Kansas Court of Appeals

criminal 

criminal law—criminal procedure—evidence—juries—prosecutors
state v. olsman
elk district court—affirmed in part,
reversed in part, vacated in part
no. 120,119—september 4, 2020

FACTS: Jury convicted Olsman of kidnapping and attempted rape. On appeal he claimed: (1) insufficient evidence supported the kidnapping conviction because confinement of the victim was incidental and inherent in the attempted rape; (2) district court erred in ruling the testimony of victim’s sister about victim’s reputation for dishonesty was inadmissible for lack of foundation; (3) district court erroneously instructed jury on kidnapping; (4) in closing argument and rebuttal prosecutor improperly commented on Olsman’s and victim’s credibility and inflamed passions of jury; (5) district court erred in denying Olsman’s motion for a new trial which argued in part that a deputy improperly referred to Olsman having been in jail on a previous occasion; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence—kidnapping, (2) exclusion of testimony, (3) jury instruction—kidnapping, (4) prosecutorial error, (5) motion for new trial, (6) cumulative error

HELD: Olsman’s kidnapping conviction is reversed and kidnapping sentence is vacated. State v. Buggs, 219 Kan. 203 (1976), State v. Cheers,  231 Kan. 164 (1982), and State v. Richmond, 250 Kan. 375 (1992), are factually distinguished as involving takings or confinements that substantially facilitated the commission of other crimes. Unpublished Court of Appeals case, is found to be similar to Olsman’s case. Applying Buggs analysis, evidence in this case is insufficient to support the kidnapping conviction.

            District court did not err in relying on State v. Penn, 41 Kan. App. 2d 251 (2009), for the foundational requirements for admitting reputation evidence. Olsman’s argument that Penn was wrongly decided is unpersuasive. Under circumstances in case, including lapse of five years between events that formed the basis for victim’s reputation and events leading to trial, district court’s determination was not an abuse of discretion. Even if district court may have incorrectly stated that victim and her sister were not of the same community, Olsman failed burden of establishing that they were. Olsman’s constitutional claim fails with no showing of error in district court’s evidentiary ruling.

            Reversal of Olsman’s kidnapping conviction renders his jury instruction claim moot.

            Prosecutor’s limited and isolated closing argument statements, in particular referring to Olsman as a “liar,” were improper but overall nature of prosecutor’s argument was premised in reasonable inferences fairly derivable from the evidence and directed jury to reach its own conclusions. Prosecutor’s rebuttal comments were an improper appeal to jury for sympathy toward the victim. In light of entire record, however, no reasonable probability these comments affected outcome of the trial.

            Olsman fails to explain how district court’s admonishment to the deputy and its curative instruction to the jury was insufficient to cure any prejudicial effect of the deputy’s statement. No abuse of district court’s discretion is demonstrated.

            With reversal of Olsman’s kidnapping conviction, only identified errors bearing on cumulative error analysis are prosecutor’s comments and deputy’s testimony. On overall strength of evidence the limited prejudice from these two harmless errors did not aggregate into reversible error.    

CONCURRENCE and DISSENT (Warner, J.): Joins majority’s analysis of all claims but for its conclusion that Olsman’s confinement of victim within his home was insufficient to support the jury’s kidnapping verdict. Jury decided whether Olsman’s grabbing of victim’s arm and preventing her from leaving was an independently significant act, and sufficient evidence supported its assessment. Majority ventured into jury’s fact-finding role by reweighing the evidence supporting Olsman’s kidnapping conviction.

STATUTES: K.S.A. 2019 Supp. 22-3501(1), 60-455, -460(z); K.S.A. 2015 Supp. 21-5408(a)(2), -5503(a)(1)(A); K.S.A. 60-419, -420. -422(d), -446, -447(a), -460(z)

Tags:  criminal law  criminal procedure  Elk District Court  evidence  juries  prosecutors 

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August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE SUSAN ELIZABETH VAN NOTE
NO. 16,327—AUGUST 26, 2020

FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas.

HELD: The Court accepts the surrender of Van Note's license to practice law in Kansas and she is disbarred.

criminal

appellate procedure—contracts—criminal procedure—evidence—motions
state v. Braun
ellis district court—reversed and remanded; court of appeals—reversed
No. 113,762—august 28, 2020

FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun’s arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court’s denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun’s conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for review granted on sole issue of whether panel erred in finding harmless error.

ISSUE: Stipulated facts in support of conviction on alternative charge

HELD: Braun’s conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun’s motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred by not considering and applying the conditions that limited the binding nature of the parties’ stipulation. District court’s judgment is reversed and case is remanded for further proceedings related only to the alternative count of DUI under K.S.A. 2012 Supp. 8-1567(a)(2).

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 2012 Supp. 8-1001(k), -1567(a)(2), -1567(a)(3)

constitutional law—criminal law—criminal procedure—motions—sentencing—statutes
state v. Juarez
lyon district court—affirmed; court of appeals—affirmed
no. 118,543—august 28, 2020

FACTS: Juarez entered plea to aggravated battery of prison guard. District court found Juarez guilty but did not notify him of obligation to register as a violent offender under Kansas Offender Registration Act (KORA), and KORA did not list aggravated battery as a crime that automatically required registration. Juarez remained confined until sentencing hearing six weeks later. At sentencing, district court exercised its discretion to require Juarez to register as a violent offender under KORA. Juarez objected to lack of notice to register but offered no evidence on the issue. Sentencing continued to address restitution. Juarez again objected to lack of notice but again offered no evidence and asked for no additional time to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals affirmed in unpublished opinion, relying on State v. Marinelli, 307 Kan. 768 (2018). Sole issue on review is whether the notice provided by the district court violated Juarez’ right to due process.

ISSUE: Due process—notice of obligation to register as violent offender

HELD: Validity of the district court’s registration order is not challenged and is presumed valid. District court’s failure to provide timely notice of Juarez’s obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of procedural due process because Juarez failed to demonstrate prejudice. He neither presented additional evidence nor asked for the opportunity to do so with respect to district court’s exercise of discretion to order registration, and he remained incarcerated with no responsibility to register between the time the district court should have provided notice and the time it actually did so.  

CONCURRENCE (Biles, J.): Concurs with the result but believes Marinelli controls disposition. District court’s timing error does not excuse the registration obligation, and Juarez did not show any prejudice.

CONCURRENCE (Stegall, J.): Concurs that Juarez’ due process rights were not violated, but does so because district court’s registration order was not valid. Based on State v. Thomas, 307 Kan. 733 (2018), once Juarez was convicted the district court lost its opportunity to create the necessary precondition for a registration obligation to spring into existence through judicial fact-finding. When a district court does not make the necessary fact-finding at time of conviction - and the notice is not given - no process has been denied because the defendant is not an offender required to register under KORA.

DISSENT (Rosen, J.)(joined by Beier, J.): Would find Juarez’ due process rights were violated. Stands by his dissents in previous cases that KORA is punitive in effect, and thus is a consequence of Juarez’ plea. Marinelli is distinguished. Here, Juarez plead no contest to a crime while completely unaware the court would later require him to register under KORA, and he was never offered the opportunity to withdraw that plea by demonstrating good cause (pre-sentencing motion) instead of having to show manifest injustice (post-sentencing motion.  

STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 22-4901 et seq., -4902(e)(1), -4902(a)(5),  -4904(a)(1)(A); K.S.A. 22-4902, -4905

appeals—appellate procedure—criminal law—statutes
state v. Lindemuth
shawnee district court—reversed and remanded; court of appeals—affirmed
No. 116,937—august 28, 2020

FACTS: Jury convicted Lindemuth of one count of criminal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Appeals reversed, holding trial court erred by rejecting proposed jury instruction on workplace defense. 55 Kan.App.2d 419 (2018). State sought review of panel’s decision on factual appropriateness of the workplace defense instruction. Days prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad. Lindemuth filed Supreme Court Rule 6.09 letter arguing his appeal was affected and requesting reversal of his conviction as in Johnson. Supplemental briefing ordered.

ISSUE: Change of law—constitutional error

HELD: Panel’s judgment is affirmed as right for the wrong reason. Lindemuth’s conviction cannot stand after Johnson, regardless of outcome on State’s issue for review. Like Johnson, the trial record provides no basis for court to discern whether jury concluded the State had proved beyond a reasonable doubt that Lindemuth committed criminal threat intentionally, and court cannot conclude the State met its burden of showing the constitutional error was harmless. District court’s judgment is reversed and case is remanded with directions.

DISSENT (Biles, J.)(joined by Stegall, J.): Would find the constitutional error harmless under the rationale in Justice Stegall’s dissenting opinion in Johnson, and would keep the case to reach the instructional error claim.

DISSENT (Rosen, J.): Would find the constitutional error harmless. While there was strong evidence supporting intentional conduct in Johnson, he agreed with majority that there was also evidence of recklessness.  Here he sees no evidence of recklessness where Lindemuth simply denied making any threatening statements.

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), -5223(a), -5415(a)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal procedure - sentencing
state v. Dominguez
sedgwick district court - reversed and remanded
no. 121,618—august 28, 2020

FACTS: Dominguez sentenced in August 2017 to prison term and granted probation for 24 months. In October 2017 district court found probation violation and imposed three-day quick dip jail sanction. A September 2018 warrant issued for six probation violations. At a July 10, 2019, hearing district court revoked probation, applying the July 1, 2019, amendment to the intermediate sanctioning scheme which removed the requirement for a 120-day or 180-day sanction before revocation could be ordered. Dominguez appealed, arguing for first time that district court should have applied either the law in effect at time of her 2018 probation violations or the law in effect when she committed her 2017 crimes of conviction.

ISSUE: Revocation of probation—K.S.A. 2019 Supp. 22-3716

HELD: Following the reasoning in State v. Coleman 311 Kan. 332 (2020), and finding unpublished Court of Appeals’ opinions on the same issue persuasive, court holds the 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does not apply retroactively to probation violators whose crimes were committed before the effective date of the amendment.  State’s reliance on State v. Tearney, 57 Kan.App.2d 601 (2019), is misplaced.  Reversed and remanded for new dispositional hearing. District court must impose either a 120-day or 180-day prison sanction before revoking Dominguez’ probation unless the court finds a valid statutory ground to circumvent further intermediate sanctions.

STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, -3716(c), -3716(c)(1)(C), -3716(c)(10);  K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716

Tags:  appeals  appellate procedure  constitutional law  contracts  criminal law  criminal procedure  disbarment  Ellis District Court  evidence  Lyon District Court  motions  Sedgwick District Court  sentencing  Shawnee District Court  statutes 

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July 21, 2020 Digests

Posted By Administration, Monday, August 24, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—evidence—jury instructions
state v. green
Montgomery District Court—affirmed
no. 118,366—August 21, 2020

FACTS: For offenses related to the killing of Green’s ex-wife’s boyfriend, a jury convicted Green of first-degree premeditated murder, aggravated burglary, and arson. On appeal he claimed: (1) district judge should have instructed jury on defense of voluntary intoxication; (2) district judge should instructed jury on lesser included offense of voluntary manslaughter; (3) district judge’s failure to give those two instructions deprived Green of his constitutional right to a jury trial; (4) the failure to instruct on voluntary manslaughter pushed jury to convict on first-degree premeditated murder even if jurors had reasonable doubt that State had proved its case; (5) district judge erred in admitting into evidence a videotaped interrogation of Green because officers repeatedly challenged his honesty and truthfulness during that interrogation; (6) district judge erred in refusing to give cautionary instruction about testimony from jailhouse informants; and (7) cumulative error denied him a fair trial.

ISSUES: (1) Jury instruction—voluntary intoxication; (2) jury instruction—voluntary manslaughter; (3) right to a jury trial; (4) constitutional right to due process; (5) evidence—videotaped statements; (6) cautionary instruction on informant testimony; (7) cumulative error

HELD: Under facts in case, an instruction on voluntary intoxication was not factually appropriate. No evidence of impairment that would prevent the formation of the necessary criminal intent. Instead, Green relies on evidence of his intoxication before and after the crime.

            District judge correctly denied Green’s request for a voluntary manslaughter instruction. No evidence that the sleeping victim did anything as Green entered his house that could be characterized as provocation.

            District judge’s failure to instruct jury on voluntary intoxication and voluntary manslaughter did not violate Green’s constitutional claim of being denied right to a jury trial where no evidence supported Green’s requests for those instructions.

            Green’s argument for extending Beck v. Alabama, 447 U.S. 625 (1980), to noncapital cases is rejected. Under facts in case, no error under Beck’s letter or its spirit.

            Green’s challenge to the admission of videotaped statements he made during police interview, raised for the first time on appeal, is not considered. Even if error to not redact the interviewers’ comments on credibility, the error would be far from dispositive. Court finds no established exception to the preservation problem, and notes this case is a poster child for adherence to the contemporaneous rule.

            District judge did not err in denying Green’s request for a cautionary instruction on informant testimony. Neither jailhouse informant was acting as an agent for the State when the informant first received incriminating information from Green, and multiple witnesses and other evidence corroborated each informant’s testimony.

            Cumulative error doctrine not applicable where there is no error or only a single error.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Green was impaired at the time of the crime. Disagrees with that portion of majority’s decision to the extent it implies the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTES: K.S.A. 2019 Supp. 21-5108(c), 60-261; K.S.A. 2018 Supp. 21-5205(b), -5404(a)(1); K.S.A. 60-404, -455, -1507

constitutional law—criminal law—criminal procedure—
evidence—prosecutors—statutes
state v. moore
reno district court—affirmed
no. 121,040—august 21, 2020

FACTS: Moore was convicted of first-degree premeditated murder. The trial judge allowed State to introduce incriminating statements Moore made during police interview, finding Moore made no unequivocal request for counsel. Trial judge also denied Moore’s request for voluntary intoxication instructions on first-degree premeditated murder and lesser-included crime of intentional second-degree murder. On appeal Moore claimed: (1) district judge should have suppressed evidence of his incriminating statements; (2) it was error to refuse to give voluntary intoxication instructions; (3) prosecutor committed error in closing argument; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Motion to suppress; (2) voluntary intoxication jury instruction; (3) prosecutorial error; (4) cumulative error

HELD: District judge did not err in denying the motion to suppress. Moore’s statement that “Well, I guess it’s lawyer time now then,” considered as a whole and in context, is ambiguous. And his statement ten minutes later that he was “done, all right,” followed by continued talking on his part did not transform his earlier statement into an unambiguous invocation of right to counsel.

            District judge did not err in denying voluntary intoxication instructions. Even assuming such an instruction was legally appropriate, it was not factually appropriate where there was no evidence of impairment negatively affecting Moore’s ability to form the requisite intent.

            No error found in prosecutor’s closing argument by stating that premeditation can be seen from Moore standing there and pulling the trigger over and over again, and by decrying the American tradition of criticizing the police. These statements did not make an equivalent to the forbidden argument that premeditation can be formed instantaneously, and did not appeal to jurors’ passions or prejudices. Prosecutor’s rebuttal statement that Moore may have been eliminating his competition was error because this unsupported speculation on Moore’s motive  argued facts not in evidence. In light of overwhelming evidence against Moore, however, this error was harmless.

            Cumulative error doctrine not applicable where only a single instance of a harmless prosecutorial error found.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Moore was impaired at the time of the crime. Disagrees with that portion of majority’s discussion on the issue to the extent it relies on State v. Green, __ Kan. __ (this day decided), that finds the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5205(b)

appeals—constitutional law—criminal law—
criminal procedure—jury instructions—statutes
state v. pattillo
shawnee district court—affirmed
no. 118,941—august 21, 2020

FACTS: Pattillo drove the van in which an occupant fired shots, killing Miller and hitting the residence which was occupied by Miller’s seven-year-old nephew. Jury convicted Pattillo of felony murder, aggravated assault for threatening Miller with a gun, felony discharge of a firearm, and aggravated endangering of a child. On appeal, Pattillo challenged whether the underlying felonies supported the felony-murder conviction, and whether sufficient evidence supported the convictions. He also claimed his convictions for discharge of a firearm and felony murder violated both the Double Jeopardy clause and K.S.A. 2019 Supp. 21-5109(b), and claimed the trial judge erred in instructing the jury.

ISSUES: (1) Underlying felonies—merger doctrine; (2) underlying felonies—sufficiency of the evidence; (3) underlying felonies—multiplicity; (4) multiple convictions and punishments; (5) jury instructions

HELD: Merger doctrine applies to Patillo’s aggravated assault conviction, and under facts in case, the aggravated assault merged with the homicide. If this were the only underlying felony, the felony-murder conviction would be reversed.

            Pursuant to K.S.A. 2019 Sup. 21-5402(c)(1), merger doctrine does not apply to Pattillo’s convictions for aggravated endangering a child and discharge of a firearm at a dwelling, but under facts in case, sufficient evidence supports both underlying felonies. Sufficient circumstantial evidence that Pattillo was aware of the risk to the seven-year-old who lived in the dwelling and consciously disregarded that risk. Statutes for child endangerment and aggravated child endangerment are compared to reject Pattillo’s argument that State was required to prove he knew a child was in the house at the time of the shooting. No language in K.S.A. 2019 Supp. 21-5601(b)(1) or the definition of reckless conduct requires that a person endangering a child must know a child is in danger. State v. Herndon, 52 Kan.App.2d 857 (2016), rev. denied 306 Kan. 1324 (2017), is factually distinguished. Sufficient evidence also supports Pattillo’s conviction for criminal discharge of a firearm at a dwelling, and Miller’s death occurred during the res gestae of the acts of discharging a weapon at a dwelling and of endangering a child.

            Cumulative punishments for both criminal discharge of a firearm and felony murder violate neither the Double Jeopardy Clause nor K.S.A. 2019 Supp. 21-5109. Same elements test in State v. Schoonover, 281 Kan. 453 (2006), is not employed where the legislature has expressed its intent to allow cumulative punishments for felony murder and those underlying felonies that do not merge with the homicide, such as discharge of a firearm at a dwelling. Pattillo can be sentenced for both felony murder and the enhanced punishment for discharging a firearm resulting in great bodily harm.

            No merit to Pattillo’s jury instruction claims. Invited-error doctrine precludes review of Patillo’s claims regarding the felony-murder jury instruction and the criminal discharge instruction. And Pattillo failed to show clear error in district judge’s failure to instruct jury on the lesser-included offenses of criminal discharge or of endangering a child.

STATUTE: K.S.A. 2019 Supp. 21-5109, -5109(b), -5109(b)(1), -5109(b)(2) -5202(j), -5402(a)(2), -5402(c), -5402(c)(1)(S),  -5402(c)(2), -5402(c)(2)(D), -5601(a), -5601(b)(1), -5601(c)(1), -6308, -6308(a)(1)(A), -6308(a)(3)(B), -6308(b), -6308(b)(1)(A), -6308(b)(1)(B), 22-3414(3)

K.S.A. 2015 Supp. 21-5402(c)(1)(O), -5402(c)(1)(S) -5601(b)(1). -6308(a)(1)(A)

 

Kansas Court of Appeals

CRIMINAL

EVIDENCE—JOINDER—PRIOR CRIMES
STATE V. BROWN
SALINE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,460—AUGUST 21, 2020

FACTS: In 2015 Brown was charged with three counts of rape and one count of aggravated indecent liberties for crimes involving his stepdaughter, K.N. While he was in custody, Brown wrote both K.N. and A.N., the victim's mother and his long-time companion. The contents of the letters caused the State to charge him with one count each of intimidation of a victim and a witness. Over Brown's objections, the information was consolidated for one trial. After a jury trial, Brown was convicted of all charges except for intimidation of a victim. He appealed.

ISSUES: (1) Admission in evidence of prior acts of domestic violence; (2) consolidation of information for one trial; (3) denials of motions for mistrial

HELD: At trial, the district court admitted evidence that Brown significantly damaged property at the home during arguments with A.N. The evidence was ostensibly admitted to prove why K.N. would be fearful to disclose the sexual abuse, even though the evidence showed that K.N. did not witness these events. There was extensive testimony at trial about these domestic violence events. Although the prior-crimes evidence was relevant and material, its probative value was diminished given the lengthy timelines over which the abuse occurred and the undisputed fact that K.N. did not witness the behavior. And the State never asked K.N. at trial if her failure to report was due, at least in part, to Brown's violent tendencies. The exhaustive testimony about Brown's prior crimes, the diminished probative value of the evidence, and the fact that the State could have proven the same thing with less prejudicial evidence, results in the conclusion that the district court erred by admitting the evidence. This error cannot be considered harmless and the case must be remanded for a new trial. It is undisputed that the State established the legal requirements to consolidate all charges. The letters to A.N. and K.N. put Brown's character into dispute that prejudiced him with the jury, all for little probative value. The district court erred by consolidating these cases for trial. There is no need to review errors in the district court's rulings on Brown's motions for mistrial. This case has already been reversed for two new trials.

STATUTE: K.S.A. 22-3202, -3303, 60-447(b), -455, -455(a), -455(b),

Tags:  appeals  constitutional law  criminal law  criminal procedure  evidence  joinder  jury instructions  prior crimes  prosecutors  statutes 

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August 7, 2020 Digests

Posted By Administration, Monday, August 10, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—
evidence—fourth amendment
state v. ellis
lyon district court—reversed and remanded;
court of appeals—affirmed
No. 120,046—august 7, 2020

FACTS: Police were called to check on welfare of a person (Ellis) in convenience store bathroom. Ellis stated she was okay and having stomach trouble. Police asked for identification, held Ellis’ drivers license to run warrant check, arrested her on an outstanding probation violation warrant, and found drugs and paraphernalia in subsequent search. State charged Ellis with drug offenses. She filed motion to suppress, arguing the seizure and subsequent search exceeded the scope of the encounter. State argued the attenuation doctrine set out in Utah v. Strieff, 579 U.S. __ (2016), legitimized the search. District court denied the motion and convicted Ellis in bench trial. Ellis appealed. Court of Appeals reversed, holding the investigatory detention exceeded the scope of the welfare check and the evidence obtained as a result should have been suppressed. 57 Kan.App.2d 477 (2019). State’s petition for review granted.

ISSUES: (1) Scope of welfare check; (2) attenuation doctrine

HELD: Under facts of the case, the officer lawfully engaged with Ellis and requested her identification. But police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention. Here, the officer had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Checking if Ellis “had some pick up order” exceeded the scope of the safety check. Ths constituted an unlawful seizure and consequent search.

              Application of the attenuation exception to the exclusionary rule is inappropriate on facts in this case. Factors in Strieff are applied finding all weigh against admissibility of the drug evidence under the attenuation doctrine: (1) a very short passage of time; (2) under Kansas caselaw the discovery of an outstanding warrant was not an attenuating factor in this case; and (3) the clarity of Kansas law forbidding the officer’s illegal conduct supports a finding of flagrant official misconduct. District court’s judgment is reversed and evidence seized subsequent to the initial conduct must be suppressed. Remanded for further proceedings.

CONCURRENCE (Stegall, J.)(joined by Luckert, C.J. and Wilson, J.): Concurs with the result but majority appears to back away from the more stringent requirements in Strief. Under Strief as outlined in State v. Tatro, 310 Kan. 263 (2019), when a preexisting valid warrant is discovered, the only question remaining is whether the unconstitutional conduct was purposeful or flagrant. Agrees with majority’s finding of flagrant misconduct, but would limit the analysis in these circumstances to that question only.  

STATUTES: None

constitutional law—criminal procedure—evidence—
jury instructions—prosecutors
state v. timley
shawnee district court—affirmed
No. 120,414—august 7, 2020

FACTS: Timley convicted of first-degree premeditated murder. During trial, Timley’s cellphone records including the cell towers accessed were admitted into evidence without objection, and a detective using Per Call Measurement Data (PCMD) from Sprint testified about the relative position of Timley’s phone throughout the day of the shooting. On appeal Timley claimed: (1) prosecutor erred during opening and closing arguments by making statements concerning the location of Timley’s phone at the time of the shooting; (2) district court erred in admitting the detective’s cell tower maps and accompanying testimony because detective lacked necessary expertise; (3) district court committed clear error by failing to instruct jury on intentional second-degree murder as a lesser included offense; (4) district court’s failure to instruct jury on lesser included offenses violated Timley’s right to due process; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) admission of evidence; (3)jury instruction on lesser included offense; (4) due process; (5) cumulative error

HELD: Prosecutor’s remarks during closing argument did not stretch the PCMD distance from a cell tower to Timley’s phone into a certitude, and thereby did not exceed the wide latitude extended to prosecutors. Prosecutor’s opening statement, by postulating that Timley’s phone was “exactly” at the site of the shooting, barely avoided error, but even if error, no possibility the prosecutor’s remark contributed to the verdict.

            Under facts of the case, no expert witness was needed. The detective’s exhibits and accompanying testimony did not require any specialized knowledge or expertise beyond that which he was demonstrated to possess.

            District court erred in failing to sua sponte instruct jury on lesser included offense of intentional second-degree murder, but under facts of the case, no clear error is found.

              In noncapital case, a district court’s failure to sua sponte instruct on lesser included offense does not violate a defendant’s constitutional right to due process. Based on State v. Becker, 311 Kan. 176 (2020), and State v. Love, 305 Kan. 716 (2017), no due process violation found in district court’s failure to issue a lesser included offense instruction sua sponte.

            Cumulative error claim is rejected. Only one harmless error found in district court’s failure to sua sponte instruct jury on a lesser included offense. Even if prosecutor’s opening statement was harmless error, it bore no relation to the instructional error.

CONCURRENCE (Biles, J.)(joined by Rosen, J. and Ward, S.J.): Disagrees that prosecutor’s opening statement was fair comment. Would hold it was error for prosecutor in opening statement to tell jury the cell tower data would reflect Timley’s exact location, but agrees the error is harmless for reasons stated by majority.

STATUTES: None

 

Kansas Court of Appeals

criminal

criminal law—insurance—jurisdiction—statutes
state v. rozell
wyandotte district court—affirmed
No. 121,094—August 7, 2020

FACTS: Rozell (Missouri resident) and Lopez (Wyandotte County, Kansas, resident) were in a car accident in Missouri. Rozell submitted bodily injury claim on Lopez’ State Farm insurance to a claims representative in Tennessee who discovered the Missouri hospital bill Lopez submitted had been altered to show a post-accident date. State charged Rozell in Wyandotte County with one count of making false information and one count of fraudulent insurance act, listing State Farm as the victim of Rozell’s crimes. District court granted Rozell’s motion to dismiss the charges for lack of jurisdiction. State appealed, arguing proximate result jurisdiction existed under K.S.A. 2017 Supp. 21-5106(b)(3) for a person who attempts to defraud a Kansas insurance policy issued to a Kansas resident, and Wyandotte County was the proper venue.

ISSUE: Proximate result jurisdiction

HELD: District court’s dismissal of the charges for lack of jurisdiction is affirmed. Kansas does not have proximate result jurisdiction to prosecute Rozell for making false information, K.S.A. 2019 Supp. 21-5824(a), or committing a fraudulent insurance act, K.S.A. 2019 Supp. 40-2,118(a), just because he allegedly intended to defraud a Kansas insurance policy. The law related to proximate result jurisdiction is reviewed. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person’s out-of-state criminal acts within Kansas only if the statutory language of that person’s charged crime considered such negative consequences. Here, the State failed to analyze the elements of the charged crimes. Neither the making false information statute, nor the fraudulent insurance act statute consider the negative consequences of a person’s out-of-state criminal acts in the language of the statute.

STATUTES: K.S.A. 2019 Supp. 21-40-2,118(a), -5106, -5106(b), -5106(b)(3), -5824(a), -5830(a)(2); K.S.A. 2017 Supp. 40-2,118(a), -2,118(e), -5106(b),-5106(b)(3), -5824(a) ; K.S.A. 1994 Supp. 21-3734(a)(2)

Tags:  Constitutional Law  criminal procedure  evidence  Fourth Amendment  insurance  jurisdiction  jury instructions  Lyon District Court  prosecutors  Shawnee District Court  statutes  Wyandotte District Court 

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July 24, 2020 Digests

Posted By Administration, Monday, July 27, 2020

Kansas Supreme Court

Civil

HABEAS CORPUS, RIGHT TO COUNSEL
BALBIRNIE V. STATE
FRANKLIN DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,650—JULY 24, 2020

FACTS: Balbirnie was convicted of second-degree murder, and his conviction was affirmed on direct appeal. Throughout that process, Balbirnie consistently proclaimed his innocence and blamed the murder on one of the other people present at the scene of the crime. Within one year of his conviction being affirmed, Balbirnie filed a K.S.A. 60-1507 motion in which he claimed trial counsel was ineffective for failing to investigate and then introduce at trial a recording of a 911 call at which an eyewitness named another person as the murderer. After an evidentiary hearing, the district court found that trial counsel did not perform deficiently and even if he had, Balbirnie failed to establish prejudice. The Court of Appeals disagreed with the district court on the question of trial counsel's performance, finding that the failure to introduce the 911 call fell below an objective standard for reasonably effective representation. But the panel ultimately affirmed the district court, holding that this deficient performance did not prejudice Balbirnie. The Supreme Court granted Balbirnie's petition for review.

ISSUES: (1) Performance; (2) prejudice

HELD: Balbirnie prevailed in the Court of Appeals on the issue of deficient performance and did not seek review of that decision. The State did not file a cross-petition for review either, although case law existing at the time the petition was filed suggests such a filing was not necessary. A cursory glance at the Court of Appeals' decision shows that it correctly ruled that trial counsel's failure to introduce the 911 call was not a strategic decision was, in fact, objectively unreasonable. A review of the evidence in its totality shows that if the call had been introduced there was a reasonable probability the jury would have made a different decision. This is true even though there was evidence of Balbirnie's guilt.

STATUTE: K.S.A. 60-420, -1507

criminal

criminal procedure—evidence—prosecutors
state v. martinez
shawnee district court—affirmed
no. 119,739—july 24, 2020

FACTS: Martinez convicted of first-degree premeditated murder and other crimes arising from a drive-by shooting. On appeal he claimed the prosecutor erred in closing arguments by saying “The defense has speculated about other peoples [sic] motives, but the State has actually presented evidence.” Martinez argues this impermissibly shifted the burden of proof and infringed on his constitutional protection against compulsory self-incrimination.

ISSUE: (1) Prosecutorial error

HELD: Prosecutor’s statements were within the wide latitude allowed in closing arguments. The comments, when read in context, appropriately explained how the evidence supported the State’s theory of the case, and did not offend Martinez’ constitutional right to a fair trial. Prosecutor did not comment on Martinez’ failure to testify or argue Martinez had to prove that he lacked a motive or that witnesses had a motive to lie. Prosecutor did not suggest the defense had any burden to do something in response to the State’s evidence or that 000Martinez needed to testify and explain his action. Nor did the prosecutor shift the burden or comment on Martinez’ failure to testify by pointing out the defense’s argument rested on an inference.

STATUTE: K.S.A. 60-439

criminal law—criminal procedure—jury instructions—
prosecutors—sentencing—statutes
state v. thomas
chautauqua district court—affirmed in part, reversed in part,
vacated in part, remanded
court of appeals—affirmed in part, reversed in part, vacated in part
no. 115,990—july 24, 2020

FACTS: Thomas convicted of aggravated battery, abuse of a child, and aggravated endangering of a child. On appeal he argued:  (1) district court erred by giving jury instructions that allowed the jury to convict him of aggravated battery if it found he intended the conduct but not the harm; (2) prosecutor improperly inflamed the passions and prejudices of jurors during closing argument by showing them photos of the child’s injuries and repeatedly telling them to acquit only if the jurors thought it was acceptable to inflict such injuries on “your child;” (3) cumulative effect of these two errors denied him a fair trial; and (4) district court erroneously scored Thomas’ 2001 out-of-state Virginia conviction for domestic assault and battery as a person crime. Court of Appeals affirmed in unpublished opinion, finding in part the aggravated battery jury instruction was erroneous but the error was harmless, and prosecutor’s if-you-think-it’s-okay statements did not encourage jurors to consider factors outside the evidence and law. Review granted.

ISSUES: (1) Jury instructions—aggravated battery; (2) prosecutorial error; (3) cumulative error; (4) sentencing

HELD: District court’s aggravated battery instructions were erroneous. Under State v. Hobbs, 301 Kan. 203 (2015), “knowingly” in elements of aggravated battery means more than just proving the defendant intended to engage in the underlying conduct, and requires State to prove the defendant acted when he or she was aware the conduct was reasonably certain to cause the result.

            Prosecutor’s If-you-think-it’s-okay statements were error. Panel’s reasons for finding that prosecutor’s statement did not encourage jurors to consider factors outside the evidence and law are examined and criticized as conflating the analysis of error with whether error was harmless. As to the child abuse charge the prosecutor’s error was harmless. Thomas’ conviction on this charge is affirmed. As to the aggravated battery charge for which instructional error was found, the combined impact of these errors must be considered.

            Cumulative error denied Thomas a fair trial on the aggravated battery charge. The erroneous jury instruction allowed the jury to find guilt based on a less culpable intent than required by the statute, and State’s repeated comments urged jury to convict based on emotional consideration rather than a reasoned and deliberate consideration of facts and law. The aggravated battery conviction is reversed and case is remanded for a new trial on this charge.   

              Assault and battery, as defined by Virginia common law, is broader than Kansas battery and could encompass behavior that is not a crime in Kansas. Under State v. Wetrich, 307 Kan. 552 (2018), district court incorrectly calculated Thomas’ criminal history score and should have scored the 2001 Virginia conviction as a nonperson crime. Remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e); K.S.A. 2015 Supp. 21-5413, -5413(b), -5413(b)(1)(A), -5413(g), -5602, -6811(e), 22-3414(3)

 

Kansas Court of Appeals

Civil

DIVORCE—PARENTING TIME
IN RE MARRIAGE OF DAVIS AND GARCIA-BEBEK
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 121,110—JULY 24, 2020

FACTS: Davis and Garcia-Bebek divorced in 2014. They shared joint legal custody of two minor children and Garcia-Bebek had permission to take the children to visit family in his native country of Peru every other year. In 2018, Davis sought to be awarded sole legal custody of the children after Garcia-Bebek was charged with three federal crimes. Perhaps because of his legal issues, Garcia-Bebek moved back to Peru. But he asked for reasonable parenting time which would include having the children visit him in Peru for up to 30 days at a time. The district court initially ruled in Garcia-Bebek's favor but was swayed to reconsider by Davis's argument that Garcia-Bebek's crimes showed that he was untrustworthy, making international parental kidnapping a realistic possibility. Garcia-Bebek appealed.

ISSUE: (1) Parenting time outside of the United States

HELD: The district court did not prevent Garcia-Bebek from exercising his parenting time. It just prevented him from doing so in Peru. There was nothing to prevent Garcia-Bebek from visiting the children in their home country. It is undisputed that there is an outstanding indictment in a federal criminal case and a warrant for his arrest in Kansas. This evidence is sufficient to support the district court's decision preventing the children from visiting Garcia-Bebek in Peru.

STATUTE: K.S.A. 2019 Supp. 23-3203(a), -3208(a)

Criminal

constitutional law—criminal procedure—probation—sentencing—statutes
state v. lyon
sedgwick district court—affirmed
no. 120,993—july 24, 2020

FACTS: Lyon convicted on his pleas to charges of aggravated battery, criminal possession of a firearm, and endangerment of a person. Pursuant to the plea agreement, district court imposed dispositional departure sentence of probation with underlying prison term. District court’s calculation of criminal history included Lyon’s 2010 Kansas aggravated burglary conviction as a person felony. Probation violation warrant issued four months later, alleging in part that Lyon committed the felony offense of aggravated battery/domestic violence. Trial judge revoked probation, finding Lyon had committed misdemeanor domestic battery. On appeal, Lyon claimed the trial court’s revocation of probation denied Lyon due process because the State failed to allege he committed a domestic battery in the probation violation. He also claimed his 2010 Kansas conviction should have been classified as a nonperson felony because the elements of the 2010 version of aggravated burglary are broader than the elements of the 2017 version of the crime.

ISSUES: (1) Due process—revocation of probation; (2) sentencingcriminal history

HELD: District court did not err in revoking Lyon’s probation. The warrant’s allegation that Lyon committed aggravated battery/domestic violence sufficiently notified him of what the State intended to prove, and it is uncontested that substantial competent evidence supports the trial court’s finding of domestic battery.

            The identical-or-narrower test in State v. Wetrich, 307 Kan. 552 (2018), which applies to out-of-state offenses and to Kansas offenses committed prior to the1993 implementation of the Kansas Sentencing Guidelines Act (KSGA), does not apply to the scoring of Lyon’s post-KSGA Kansas conviction. A post-KSGA Kansas crime is properly scored as a person offense if the crime was classified as a person offense when it was committed and when the current crime of conviction was committed and when the current crime of conviction was committed even if the prior version of the earlier crime’s elements are broader than the elements of the current version. Lyon’s alternative constitutional argument under Apprendi is not properly before the court and is not considered. Whether recodification and/or statutory amendments to aggravated burglary amounted to a repeal for purposes of K.S.A. 2017 Supp. 21-6810(d)(8) is examined, finding no such determination is required in this case. Regardless of the statutory amendments to aggravated burglary, district court properly scored Lyon’s prior conviction for aggravated burglary as a person offense.

STATUTES: K.S.A. 2019 Supp. 21-5109(b), -5111(i), -6801 et seq., -6804(c), -6804(p), -6809, -6810, -6811(e)(1); K.S.A. 2018 Supp. 21-5414(a), 22-3716, -3716(b)(1), -3716(c)(8)(A), -3716(c)(9)(B); K.S.A. 2017 Supp. 21-5807(b), -5807(b)(1), 5807(e), -6810(d), -6810(d)(8), -6810(d)(9), -6811(e)(3); K.S.A. 2011 Supp. 21-3715(a), -5103(d), -5413, -5427(3), -6811(d)(1); K.S.A. 21-3412, -3701, -3715, -3716, -4843, 22-3716

 

 

Tags:  constitutional law  criminal law  criminal procedure  divorce  evidence  habeas corpus  jury instructions  parenting time  probation  prosecutors  right to counsel  sentencing  statutes 

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July 17, 2020 Digests

Posted By Administration, Monday, July 20, 2020

 

Kansas Supreme Court

 

CRIMINAL

 

ATTORNEYS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MENTAL COMPETENCY

STATE V. BURDEN

SUMNER DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,819 - JULY 17, 2020

 

FACTS: Burden was charged with possession of drugs and drug paraphernalia. District court found she was competent to stand trial pursuant to a court-ordered competency exam and evaluation that found, in part, that Burden had “no significant impairment that is psychiatric in nature.”  District court also allowed Burden to represent herself, and appointed standby counsel. Jury convicted her on drug possession charges, and acquitted on the paraphernalia charge. Burden appealed, arguing district court used an incorrect standard to determine whether she was competent to represent herself. Court of appeals affirmed in unpublished opinion. Review granted.

 

ISSUE: (1) Standard for determining mental competency

 

HELD: Three distinct but related concepts are examined—mental competency to stand trial, the capacity to waive the right to counsel, and mental competency to self-represent. Indiana v. Edwards, 554 U.S. 164 (2008), allows a district court judge to deny a request to waive counsel if a defendant has a severe mental illness. But there is no error when a court does not appoint counsel for a defendant who wishes to exercise the right of self-representation if there is no evidence of the defendant's severe mental illness. Here, the district court did not err in allowing Burden to exercise her constitutional right of self-representation when the record does not establish that she suffers from a severe mental illness.  

 

STATUTE: K.S.A. 22-3301, -3301(1)

 

CRIMINAL PROCEDURE—MOTIONS—STATUTES

STATE V. EDWARDS

SHAWNEE DISTRICT COURT—AFFIRMED

NO. 120,600—JULY 17, 2020

 

FACTS: Jury convicted Edwards in 1996 of first-degree murder, conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery. In 2011, he filed motion for DNA testing of items found at crime scene. District court granted the motion in 2013, and for additional, independent DNA analysis of the evidence. District court held a 2017 hearing and found the DNA results were favorable to Edwards, but denied Edwards’ motion for a new trial because the DNA evidence was “not reasonably probable to lead to a jury reaching a different result.”  Edwards appealed.

 

ISSUE: (1) DNA testing statute

 

HELD: Even when additional DNA testing ordered under K.S.A. 2019 Supp. 21-5212 leads to results favorable to the defense, a district judge does not necessarily abuse his or her discretion by denying a motion for new trial. As in State v. LaPointe, 309 Kan. 299 (2019), the non-DNA evidence against Edwards is strong. District judge did not abuse her discretion by concluding there was no reasonable probability the DNA results would have changed the original trial’s outcome. District judge’s denial of Edwards’ motion for a new trial is affirmed.

 

STATUTE: K.S.A. 2019 Supp. 21-2512, -2512(f)(2)

 

CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—STATUTES

STATE V. HARRIS

SEDGWICK DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED

NO. 116,515—JULY 17, 2020

 

FACTS: Harris, a convicted felon on parole, was in an altercation when he opened a pocketknife with a 3.5 inch serrated blade for protection, then dropped it when police arrived. State charged him with aggravated assault, criminal possession of a weapon by a convicted felon, and criminal use of a weapon. Harris filed motion to dismiss the possession charge, claiming the statutory definition in K.S.A. 2019 Supp. 21-6304 of a “knife” was unconstitutionally vague on its face and as applied. District court denied the motion. Harris also sought to introduce evidence of parole officer who advised him he could carry a knife less than 4 inches long, and similar info in Kansas Department of Corrections (KDOC) orientation and handbook. Adopting State’s position that parole officers and KDOC staff are not legally authorized to interpret statutes, district court excluded all evidence in support of Harris’ mistake-of-law defense.  Harris appealed, claiming district court erred by rejecting his vagueness challenge to the statute and by excluding all evidence supporting his mistake-of -fact defense. In unpublished opinion Court of Appeals rejected the constitutional challenge, but reversed the trial court’s evidentiary ruling on the mistake-of-fact evidence and remanded for a new trial. Review granted.

 

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 21-6304; (2) evidence—mistake of law defense

 

HELD: Case is resolved on a facial challenge to the statute. The residual clause "or any other dangerous or deadly cutting instrument of like character" in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement. Similar problem in City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540 (2013)(noise ordinance is unconstitutionally vague). This constitutional failure began with legislative enactment that impermissibly delegated legislative power to the executive and judicial branches.

            Because case is resolved in Harris’ favor on constitutional grounds, the evidentiary issue raised in State’s petition is not reached.

 

DISSENT (Biles, J.)(joined by Rosen, J. and Green, J.): K.S.A. 2019 Supp. 21-6304 is not unconstitutionally vague on its face or as applied to Harris. Majority imposes too strict a standard on Legislature’s ability to formulate criminal laws. Analyzing K.S.A. 2019 Supp. 21-6304(c)(1) in light of the facts, the statute is sufficiently clear to have informed Harris it was unlawful to possess his knife, and the statute is sufficiently clear to stave off any contention that authorities arbitrarily prosecuted him for having it. Photo of Harrisknife is attached. Majority’s reading  of Farmway is criticized.

            Would reverse Harris’ conviction because he is entitled to pursue a mistake-of-law defense. KDOC is legally authorized to interpret the criminal-possession statute, and the KDOC handbook could be read by Harris as containing the agency’s official interpretation of the statute. Trial court’s error in not allowing Harris to pursue a mistake-of-law defense was not harmless in this case.

 

STATUTES: K.S.A. 2019 Supp. 21-5207(b)(4), -6304, -6304(c)(1), -6304(c)(2); K.S.A. 2018 Supp. 21-5207(b)(4); K.S.A. 2016 Supp. 21-5111(aa)(5), -5111(p)(2), 75-5217, -5217(a), -5217(b), -5217(c), -5217(d); K.S.A. 2012 Supp. 21-630; K.S.A. 21-6301, -6304, 75-5201, -5216

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—JURIES—STATUTES

STATE V. HARRISON

JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,670—JULY 17, 2020

 

FACTS: Jury convicted Harrison of various crimes committed in 2015. During deliberation, judge discussed jury question with Harrison, counsel and prosecutor all present. All agreed to send jury a written response. Harrison appealed on four claims of trial error, including his challenge at not being present when written response was passed to the jury by court staff. In unpublished opinion court of appeals affirmed the convictions, holding in part the district court violated Harrison’s constitutional right to be present at a critical stage in the proceedings by responding to the jury in writing rather than giving the answer in open court with Harrison present, but the error was harmless. Review granted limited to the district court’s failure to have Harrison present when jury received the answer.

 

ISSUE: (1) Response to jury’s question

 

HELD: District court complied with both statutory and constitutional requirements. 2014 revision of K.S.A. 22-3420 allows judges to answer jury questions in open court or in writing. K.S.A. 2019 Supp. 22-3405(a) is analyzed in light of that revision. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room: the delivery is not a stage of the trial at which a defendant must be present under K.S.A. 2019 Supp. 22-3405(a);  K.S.A. 2019 Supp. 22-3420(d) does not require a defendant’s presence when the jury receives that response; and the defendant’s right to be present during critical stages of the proceedings is not a violation under the Sixth Amendment Confrontation Clause or the Due Process Clause of Fourteenth Amendment. Nothing in the record reasonably suggests Harrison’s presence was essential or critical to a fair and just determination of a substantial issue. Review of panel’s harmless error analysis is unnecessary.

 

STATUTES: K.S.A. 2019 Supp. 22-3405(a), -3420(d); K.S.A. 22-2102, -3405(1), -3420(3)

 

 CRIMINAL PROCEDURE—MOTIONS—POSTCONVICTION RELIEF—STATUTES

STATE V. HILL

OSAGE DISTRICT COURT—AFFIRMED

NO. 119,359—JULY 17, 2020

 

FACTS: Pursuant to amended plea agreement, Hill entered no a contest plea in 2000 to various charges including premeditated first-degree murder. No direct appeal taken. Hill then pursued various post-conviction motions: 2004 motion under K.S.A. 60-1507; 2008 motion to withdraw his no contest pleas; 2014 and 2015 motions including new motion to withdraw pleas and motion to correct illegal sentence. District court denied each motion, and when appealed, the court of appeals affirmed. Present appeal is from district court’s denial of Hill’s 2017 pro se “Motion to Set Aside a Void Judgment Under Due Process of Law and K.S.A. 22-3210.”  The district court construed the motion as one to withdraw pleas under K.S.A. 22-3210, and denied the motion as untimely. District court further found no manifest injustice supported withdrawal of the pleas, found Hill was represented by competent counsel, there was no coercion or unfair advantage taken of Hill, and his pleas were knowingly and understandingly made. Hill appealed, arguing trial court errors, including incorrectly analyzing the motion as one to withdraw plea instead of a motion to void convictions and sentence, denied Hill due process.

 

ISSUE: (1) Due process—motion to correct illegal sentence

 

HELD: Trial judge correctly construed Hill’s various arguments as another effort to withdraw his pleas. Hill’s 2017 motion was filed outside the one year time limitation added to K.S.A. 22-3210 in 2009, and no grounds of excusable neglect for his untimely filing are asserted by Hill or otherwise demonstrated. Hill’s motion is procedurally barred. Trial court’s decision is affirmed.

 

STATUTES: K.S.A. 2019 Supp. 22-3210, -3210(a), -3210(b), -3210(d), -3210(d)(1), -3210(d)(2),  -3210(e)(1), -3210(e)(2); K.S.A. 2017 Supp. 22-3210, -3210(e)(1); K.S.A. 60-1507

 

 

Kansas Court of Appeals

 

CIVIL

 

DUISEARCH AND SEIZURE
CITY OF COLBY V. FOSTER
THOMAS DISTRICT COURT
REVERSED AND REMANDED
NO. 121,373
JULY 17, 2020

 

FACTS: A municipal court convicted Foster of DUI, and Foster appealed to district court. Prior to trial, Foster filed a motion to suppress evidence, including the breathalyzer results. During a hearing on that motion, Foster discovered that law enforcement administered the breath test before providing the implied consent advisories. The district court denied the motion, holding that at the time Foster was arrested, there was no requirement to provide the advisories because Foster was given the breath test incident to arrest. Foster was convicted after a bench trial, and he appealed.

 

ISSUE: (1) Whether the district court erred by denying the motion to suppress

 

HELD: The law in effect at the time of the criminal act controls. Foster was arrested on May 6, 2018, and on that date the amendments to K.S.A. 8-1001 had not yet been enacted. K.S.A. 2017 Supp. 8-1001(k) required that Foster receive notice of his statutory rights. There is not substantial evidence that Foster consented to the search and because he never received the statutory advisory, his consent could not have been knowing or voluntary. Similarly, Kansas law required that Foster be given the consent advisory even if the search of the breath test was done incidental to an arrest. It was not enough for the officer to deliver the implied consent advisories after the breath test had been conducted. That was not substantial compliance. The evidence should have been suppressed.

 

STATUTE: K.S.A. 2017 Supp. 8-1001(a), -1001(b), -1001(k)

 

DUIIMPLIED CONSENT
FISHER V. KANSAS DEPARTMENT OF REVENUE
DOUGLAS DISTRICT COURT
AFFIRMED
NO. 118,830
JULY 17, 2020

 

FACTS: Officer Russell saw Fisher speeding through town. Russell caught up with Fisher, who showed signs of impairment including bloodshot eyes, slurred speech and an unsteady gait. Russell arrested Fisher and gave him the implied consent advisories from the DC-70 form. Fisher refused to take a blood or breath test without an attorney present, so Russell obtained a warrant to draw blood. The test confirmed that Fisher was under the influence, and his driver's license was subsequently suspended. The suspension was affirmed by both the Kansas Department of Revenue and the district court, which found that reasonable grounds existed to require testing. Fisher appealed.

 

ISSUES: (1) Probable cause to arrest; (2) adequacy of implied consent advisory

 

HELD: Russell observed Fisher speeding and running a red light. Russell also had slurred speech and bloodshot eyes, and he smelled strongly of alcohol. Under the totality of the circumstances, there was substantial competent evidence to support the district court's conclusion that Russell had reasonable grounds to believe that Fisher was driving under the influence. The DC-70 form given to Fisher did not tell him that he had a constitutional right to refuse to submit to the test. An arresting officer must substantially comply with statutory notice provisions. In this case, Russell substantially complied by providing the implied consent notices from the revised DC-70 form. Fisher is correct that a driver is not required to consent to a requested test. But the use of the word "requires" in the statute is not by itself unduly coercive. The text, when read in its entirety, clearly informs drivers that they have the right to refuse testing.

 

STATUTES: K.S.A. 2016 Supp. 8-1001(a), -1001(k), -1020(q); K.S.A. 2014 Supp. 8-1025

 

DUIEXCLUSIONARY RULE
JOHNSON V. KANSAS DEPARTMENT OF REVENUE
COWLEY DISTRICT COURT
AFFIRMED
NO. 119,151
JULY 17, 2020

 

FACTS: Trooper LaVelle responded to reports of a one-vehicle accident. He waited on the scene while EMS treated Johnson, the driver. As EMS was walking Johnson to his car, LaVelle noticed that Johnson was swaying as he walked. EMS told LaVelle that Johnson had given the wrong birth date while in the ambulance, and they noticed that he smelled strongly of alcohol. LaVelle noticed the same thing, along with bloodshot eyes. Johnson failed the field sobriety tests that he performed. As a result. LaVelle arrested Johnson and gave him a copy of the DC-70 form before asking him to submit to an evidentiary breath test. Johnson agreed to the breath test, which revealed that his breath alcohol level was over the legal limit. Johnson received the DC-27 form and his driver's license was suspended. The Kansas Department of Revenue affirmed the suspension, so Johnson sought judicial review. The district court found that the encounter between LaVelle and Johnson was appropriate, and Johnson appealed.

 

ISSUES: (1) Reasonable grounds to request a breath test; (2) due process violation

 

HELD: In order to request an evidentiary breath test, LaVelle needed to have reasonable grounds to believe that Johnson was driving under the influence and Johnson had to be under arrest, in custody, or involved in a car accident. In this case, Johnson was in an accident which damaged property. There was also probable cause that Johnson was driving under the influence, and the district court reviewed the evidence under the correct standard. The district court's decision was supported by substantial competent evidence, and the appellate court will not reweigh the evidence. It is undisputed that some of the information contained in the implied consent advisory was later declared unconstitutional. But criminal DUI law does not apply herespecifically, the exclusionary rule has no application in an administrative license proceeding. And even if it did, the good faith exception would apply here. Johnson failed to prove that he suffered a violation of his procedural due process rights. And any substantive due process analysis must be specifically analyzed under the Fourth Amendment. Johnson could not prove that he suffered a substantive due process injury under the Fourth Amendment.

 

STATUTES: K.S.A. 2015 Supp. 8-1001, -1002(a); K.S.A. 77-621(a)(1), -621(c)

 

IMPLIED CONSENT—JURISDICTION
SANDATE V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,514—JULY 17, 2020

 

FACTS: Officer Jordan was driving behind Sandate and noticed that he was not maintaining a lane or signaling lane changes. Jordan initiated a traffic stop and arrested Sandate, who admitted to consuming alcohol, showed signs of impairment, failed field sobriety tests and refused a preliminary breath test. Jordan gave Sandate the appropriate DC-70 form when requesting the test and the appropriate DC-27 form after the refusal. The Kansas Department of Revenue affirmed the suspension, as did the district court after Sandate requested judicial review. Sandate appealed.

 

ISSUES: (1) Subject matter jurisdiction; (2) substantial compliance of the DC-70 form; (3) use of the word "require"

 

HELD: Although other panels of the court of appeals have found otherwise, the district court did have subject matter jurisdiction. Any given court of appeals panel is not bound by another panel's decision. Each panel conducts an independent analysis and comes to its own conclusion. The DC-27 form has two components: notification and certification. It acts like a charging document and charging documents do not bestow or confer subject matter jurisdiction and defects in a complaint do not deprive a court of power to hear the case. KDOR had jurisdiction to suspend Sandate's driver's license. Sandate did not properly preserve for review part of his argument. The evidence before the district court shows that Jordan substantially complied with K.S.A. 2016 Supp. 8-1001(k), and Kansas has never required strict compliance. Although the DC-70 uses the word "require", it is not coercive.

 

STATUTES: K.S.A. 2019 Supp. 8-259, -1001(k), -1002, -1002(a), -1020; K.S.A. 2016 Supp. 8-1001(k), -1002(a), -1002(f)

 

 

Tags:  attorneys  constitutional law  criminal law  criminal procedure  DUI  evidence  exclusionary rule  implied consent  juries  jurisdiction  mental competency  motions  postconviction relief  search and seizure  Sedgwick District Court  Shawnee District Court  statutes  Sumner District Court 

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July 10, 2020 Digests

Posted By Administration, Monday, July 13, 2020

Kansas Supreme Court

Civil

ADOPTION
IN RE ADOPTION OF BABY GIRL G.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED
NO. 121,051—JULY 10, 2020

FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father's parental rights were terminated. The court of appeals affirmed that ruling but reversed the award of attorney fees and remanded the case to district court for further consideration of that issue. Father's petition for review was granted.

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 59-2136(h)(1)(D); (2) whether there was adequate evidence of a failure to support;

HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court's decision that Father failed to support the natural mother during the last six months of her pregnancy. Father's non-financial support was minimal and of little value to the mother and his financial support was inconsequential.

DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father's constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling.

STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h)(1)

JURISDICTION—TAXATION
IN RE EQUALIZATION APPEALS OF TARGET CORPORATION
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED TO THE COURT OF APPEALS
NO. 119,228 – JULY 10, 2020

 FACTS: Target is one of several commercial real estate owners in Johnson County which appeals the County's ad valorem tax valuation for the 2016 tax year on seven commercial properties. After an evidentiary hearing, the Board of Tax Appeals issued a summary decision ordering lower values for each property. The Taxpayers promptly requested a full and complete written opinion. Five weeks later, the Taxpayers confirmed that the County did not request a full and complete written opinion and subsequently withdrew their request. The County objected, asking BOTA to issue a full and complete written opinion regardless of the withdrawal. The County noted that it didn't learn of the withdrawal until it was too late to file its own request. In the alternative, the County asked that BOTA consider the objection as a request for reconsideration of the summary decision. BOTA denied both requests and the County appealed. The court of appeals dismissed the appeal for lack of jurisdiction and the petition for review was granted.

ISSUES: (1) Jurisdiction; (2) scope of review

HELD: The Kansas Judicial Review Act provides the exclusive means for judicial review of agency action. There is not a final order in this case because there is no full and complete written opinion and the Taxpayers did not seek a trial de novo in district court. The KJRA does allow for limited review of nonfinal agency actions if certain conditions are met. BOTA's failure to issue a full and complete written opinion is properly considered a nonfinal agency decision. K.S.A. 77-631(a) allows for an appeal from an agency's failure to act in a timely manner. The County was an aggrieved party, as that term is used in K.S.A. 74-2426(c). BOTA's refusal to issue the full and complete written opinion was an order and is appealable on an interlocutory basis. The case is remanded to the court of appeals for further consideration of whether BOTA acted properly in failing to issue a full and complete opinion. Because there has not been a final decision the court of appeals cannot yet address the merits of the County's argument.

criminal

appellate procedure—criminal procedure—evidence
state v. brazzle
riley district court—affirmed; court of appeals—affirmed
no. 116,649—july 10, 2020

FACTS: Following car stop and subsequent discovery of drugs, Brazzle was convicted of drug-related crimes including possession of methamphetamine with intent to distribute and possession of oxycodone. During trial, district court found the State’s prior crime evidence of Brazzle’s sale of methamphetamine to undercover detective was admissible to show whether Brazzle intended to distribute the methamphetamine found in the car. On appeal, Brazzle claimed: (1) district court erred in admitting K.S.A. 60-455 evidence related to the prior methamphetamine sales; (2) jury instruction on possession of oxycodone did not require jury to find that he illegally possessed the drug without a prescription; and (3) insufficient evidence supported his conviction for possession of oxycodone. Court of appeals affirmed, finding in part that Brazzle could not claim instructional error on appeal because he advocated for the version of the instruction given to the jury. 54 Kan.App.2d 276 (2018). Review granted.

ISSUES: (1) Evidence of prior crimes; (2) invited error; (3) sufficiency of the evidence

HELD: District court did not err in admitting prior crimes evidence under K.S.A. 60-455. Caselaw on evidence of intent for simple possession is distinguished from possession with intent to distribute. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime. Under facts in this case the prior crimes evidence was material to and probative of Brazzle’s intent to distribute, and the risk for undue prejudice did not substantially outweigh the probative value.  

            By failing to argue in his petition for review why the court of appeals erred in its invited error analysis, Brazzle waived any argument he might have as to why the invited error doctrine did not apply to his claim of instructional error.

            Sufficient evidence supports Brazzle’s possession of oxycodone conviction. There was circumstantial evidence that oxycodone was part of Brazzle’s illicit drug inventory, and jury could infer Brazzle would not put his own prescription medication in same bag containing drugs that he intended to distribute. Officer’s testimony comparing the appearance of Brazzle’s pills to an image of a pill identified as oxycodone on drugs.com was sufficient. Brazzle did not object to officer’s testimony regarding how he identified the pills found in the car, and did not object to the pills being entered into evidence. Brazzle cannot recast an evidentiary ruling as a sufficiency argument.

STATUTES: K.S.A. 2019 Supp. 60-455; K.S.A. 2015 Supp. 21-5702(b), -5705(e)(2), -5706(a), 65-4116(c)(3); K.S.A. 60-404, -455 Civil 

criminal procedure—juries—motions—statutes
state v. carter
sedgwick district court—affirmed
no. 119,315—july 10, 2020

FACTS: State filed charges against Carter arising from Carter hitting and threatening a victim (Crowe) in November 2015, and arising from a December 2015 shooting that resulted in the death of two other victims. District court granted State’s motion to consolidate the charges, finding the charges were connected. Jury convicted Carter of first-degree felony murder, criminal discharge of a firearm, aggravated battery, and criminal threat. On appeal, he claimed district court erroneously refused to add language to the aiding and abetting instructing that “mere presence” alone does not establish mental culpability to convict under aiding and abetting, citing State v. Llamas,  298 Kan. 246 (2013), and the “better practice” recommendation in State v. Hilt,  2999 Kan. 176 (2014), to give such language. Carter also claimed the district court erred in consolidating the charges.

ISSUE: (1) Jury instruction—aiding and abetting; (2) motion to consolidate

HELD: Court rejects Carter’s argument for converting “better practice” into a legal requirement that “mere presence” language must be included in cases where a defendant is charged under an aiding and abetting theory and requests the instruction. While there was a modicum of evidence that Carter’s requested instruction was factually appropriate, any possible error in failing to give the requested instruction was harmless given the weight of evidence supporting Carter’s guilt.

            District court’s decision to consolidate the charges is affirmed. Cases involving consolidation decisions are discussed. In this case, Carter’s battery of Crowe precipitated the factual setting which led to Carter’s participation in the shooting.  District court correctly found a statutory condition for consolidation was met, and did not abuse its discretion in allowing consolidation.    

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 22-3202, -3202(1), -3202(3), -3203,

 

Kansas Court of Appeals

  CRIMINAL

criminal procedure—evidence—juries—motions—sentencing
state v. williams
sedgwick district court—affirmed in part, reversed in part, remanded
no. 120,768—july 10, 2020

FACTS: Jury convicted Williams of rape of 13-year old girl. During trial State introduced DNA results of one of multiple swabs taken from victim. Sentencing court imposed concurrent hard-25 life sentences, but journal entry also stated that Williams was subject to lifetime postrelease supervision for each crime. Williams filed pre-sentence motion for postconviction DNA testing of all swabs. District court summarily denied both that motion and Williams’ post-sentencing motion for reconsideration, stating only that the motion was unripe and K.S.A. 2019 Supp. 21-2512(a) did not apply. Williams appealed claiming: (1) district court erred by allowing State to exercise a peremptory strike in the midst of jury selection and prior to defense questioning of the jury panel; (2) verdict form which placed the line for finding the defendant “guilty” above “not guilty” infringed the presumption of innocence; (3) cumulative effect of these two errors denied him a fair trial; (4) journal entry of sentencing erroneously included lifetime postrelease supervision; and (5) district court erred by summarily denying his motions for postconviction DNA testing. 

ISSUES: (1) Peremptory challenge; (2) verdict form; (3) cumulative error; (4) sentencing; (5)  postconviction motion for DNA testing

HELD: Timing of State’s peremptory challenge, though unusual, was not improper and did not violate Williams’ right to a fair trial. Each party voluntarily used one peremptory challenge before the State passed the jury for cause, and used their remaining peremptory challenges after Williams approved the jury. This did not violate Kansas case law or K.S.A. 22-3411a.

            Wording of the verdict form did not violate Williams’ presumption of innocence. Kansas Supreme Court cases have rejected William’s position.

            No errors shown for application of cumulative error doctrine.

            Williams’ convictions are affirmed but case is remanded to district court for correction of error in the sentencing journal entry. A sentencing court cannot order lifetime postrelease supervision when a person has been convicted of an off-grid crime. And the journal entry erroneously recorded the effective sentence announced from the bench.

            Because district court did not rule on Williams’ motion until after pronouncing sentence, the motion was not “unripe.” District court’s summary denial of the request for postconviction DNA testing is reversed. Case is remanded so district court can articulate its findings and conclusions under the procedure outlined by Kansas statutes and Kansas Supreme Court caselaw.        

STATUTES: K.S.A. 2019 Supp. 21-2512, -2512(a), -2512(a)(1)-(3), -2512(c); K.S.A. 22-3411a

 

 

 

 

 

Tags:  adoption  appellate procedure  board of tax appeals  criminal procedure  evidence  juries  jurisdiction  motions  procedures  Riley District Court  Sedgwick District Court  sentencing  statutes  taxation 

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July 2, 2020 Digests

Posted By Administration, Monday, July 6, 2020

Kansas Supreme Court

Civil

TORTS
HAMMOND V. SAN LO LEYTE VFW POST #7515
CLOUD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 118,698—JULY 2, 2020

FACTS: Jeffrey Hammond and his wife went to the San Lo Leyte VFW Post #7515. While at the VFW, Hammond encountered Travis Blackwood. The two men argued and Blackwood allegedly threatened to beat up Hammond in the bathroom. Hammond disengaged and returned to his table. Shortly thereafter, the manager of the VFW told Hammond that he needed to leave immediately and that he was banned from the club. The manager was backed up by Blackwood and his friends, who helped escort Hammond from the bar. As soon as the manager went back inside the bar, Blackwood and his friends physically assaulted Hammond. Hammond sued the VFW, but the district court granted summary judgment in favor of the VFW. The court of appeals reversed, finding that summary judgment was inappropriate. The VFW's petition for review was granted.

ISSUE: (1) Whether VFW owed a duty to Hammond

HELD: Kansas generally follows the Restatement (Second) of Torts § 344 regarding the scope of liability of owner/operators of commercial enterprises when it comes to acts of third persons. In order to be liable, the owner need not directly witness a physical altercation. Instead, a totality of the circumstances test is used to look at factors in addition to a prior attack. By granting summary judgment, the district court cut off analysis of whether an attack such as the one Hammond suffered was foreseeable. The VFW owed Hammond a duty to protect him from the dangerous acts of other bar patrons. Questions that must be answered on remand include whether Hammond's injury was foreseeable and whether the VFW breached its duty to Hammond.

STATUTES: No statutes cited.

criminal 

appeals—constitutional law—criminal procedure—motions—sentencing—statutes
state v. bradford
dickinson district court—affirmed
no. 120,683—july 2, 2020

FACTS: Bradford’s conviction on charges of capital murder, aggravated robbery, aggravated burglary, and felony theft resulted in 2003 resentencing for capital murder and the grid crimes. District court denied Bradford’s 2018 motion to correct an illegal sentence in which Bradford challenged his hard 40 sentence for capital murder. On appeal he argued for first time that the original and resentencing courts improperly classified his prior Missouri burglary convictions as person felonies, citing State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Motion to correct an illegal sentence

HELD: Bryant’s arguments fail because his sentence was not illegal when imposed. Under State v. Murdock, 309 Kan. 585 (2019)(Murdock II), State v. Weber, 309 Kan. 1203 (2019), and State v. Bryant, 310 Kan. 920 (2019), Bradford failed to establish the district court imposed an illegal sentence for purposes of K.S.A. 22-3504.

STATUTES: K.S.A. 2019 Supp. 21-6804, 22-3504(a), -3504(c)(1), -3504(c)(2), -3504(d), -3601(b)(3); K.S.A. 2018 Supp. 21-6811(e)(3), 22-3504(1), -3504(3); K.S.A. 21-3715, -3716, -4704, -4711(e), 22-3504; K.S.A. 21-4701 et seq., -4711(e) (Furse 1995)

appeals—criminal procedure—evidence—jury instructions—statutes
state v. gibson
riley district court—affirmed in part, vacated in part
no. 119,993—july 2, 2020

FACTS: State charged Gibson with first-degree felony murder and child abuse. A defense-hired psychologist (Dr. Steffen) interviewed Gibson and gave his report to a defense pathologist and to the State. Based on K.S.A. 60-437(b), district court held there was a knowing and voluntary waiver of privilege and allowed Dr. Steffen to testify about a statement Gibson made during the interview. Jury convicted Gibson as charged. Sentence imposed included hard 25 sentence for felony murder, consecutive 34-month prison term for child abuse, and lifetime postrelease supervision. On appeal Gibson claimed: (1) trial court erroneously held that Gibson waived a privileged communication with Dr. Steffen; (2) there was insufficient evidence that Gibson’s action was knowingly done and cruel; (3) use of “should” in jury instruction on State’s burden of proof discouraged jury from exercising its nullification power; and (4) cumulative error denied him a fair trial. He also claimed the sentencing court improperly imposed lifetime postrelease supervision instead of lifetime parole.

ISSUES: (1) Psychologist-client privilege waiver; (2) sufficiency of the evidence; (3) jury instruction—burden of proof; (4) cumulative error, (5) sentencing

HELD: District court did not err by allowing Dr. Steffen to testify to Gibson’s statement made during the interview. As to privilege issue, K.S.A. 74-5323(a)(communications with licensed psychologist) applies to this case, not K.S.A. 65-5810(a)-(b)(communications with licensed professional counselors). As to waiver, Gibson’s reliance on State v. Foster,  259 Kan. 198 (1996), is flawed and Foster is distinguished. District court’s ruling based on K.S.A. 60-437 is not challenged, and Gibson’s challenge under K.S.A. 2019 Supp. 60-426a(a), raised for first time on appeal, was not preserved.

            Totality of Gibson’s statements combined with other circumstantial evidence was sufficient to establish the required mental state element that Gibson’s action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3).

            As held in State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

            No trial errors found for application of the cumulative error doctrine.

            District court had no authority to order a term of lifetime postrelase supervision along with an off-grid, indeterminate life sentence. That portion of Gibson’s sentence is vacated.

STATUTES: K.S.A. 2019 Supp. 21-5202(i), -5402(a)(2), -5602(a)(3), 22-3212(c)(2), 60-426a(a); K.S.A. 22-3219(2), 60-437, -437(b), 65-5802(b), -5810, -5810(a), -5810(b), 74-5323, -5323(a)

constitutional law—criminal procedure—double jeopardy—jury instructions— trials
state v. kornelson
reno district court—affirmed; court of appeals—affirmed
no. 118,091—july 2, 2020

FACTS: State charged Kornelson in part with felony driving under the influence (DUI), under alternative theories of driving with excessive blood or breath alcohol concentration, and driving while incapable of safely operating a vehicle because of alcohol impairment. First trial ended when court declared a mistrial without objection from State or Kornelson when jury reported a deadlock on the DUI charge. Second jury convicted Kornelson on both DUI theories and on an open container charge. On appeal, Kornelson claimed for first time that the second trial violated his right against double jeopardy because the record did not reflect a “manifest necessity” for the mistrial. He also claimed the jury instruction on State’s burden of proof improperly discouraged jury from exercising its nullification power. Court of appeals affirmed in unpublished opinion, finding Kornelson failed to show that prosecutorial conduct “goaded” him into not objecting to the mistrial.  Review granted.

ISSUES: (1) Double jeopardy; (2) jury instruction—burden of proof

HELD: The second trial did not violate Kornelson’s double jeopardy rights. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court’s action. Contrary holding in State v. Graham, 277 Kan. 121 (2004), is overruled. Given the circumstances in this case, coupled with the deference and discretion Kansas caselaw affords the trial judge making these decisions, the record supports the determination that the jury was deadlocked under the manifest necessity standard.

            As held in  State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.         

STATUTES: K.S.A. 2019 Supp. 8-1017(a)(4), -1567(a)(2), -1567(a)(3). -1599(b); K.S.A. 20-3018(b), 60-2101(b)

Tags:  Appeals  Cloud District Court  Constitutional Law  Criminal Procedure  Dickinson District Court  Double Jeopardy  Evidence  Jury Instructions  Motions  Reno District Court  Riley District Court  Sentencing  Statutes  Torts  Trials 

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June 26, 2020 Digests

Posted By Administration, Monday, June 29, 2020

Kansas Supreme Court

Civil

PUBLIC DUTY—TORTS
MONTGOMERY V. SALEH
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED IN PART, REVERSED IN PART
NO. 117,518—JUNE 26, 2020

FACTS: Trooper Saleh initiated a traffic stop when he was informed that a passenger in the vehicle had a knife and was acting erratically. The driver rapidly accelerated and drove recklessly, running stop signs and red lights while his speed reached near 100 miles per hour. Saleh decided to stop pursuit, but not before the driver ran a red light and hit a pickup truck, injuring Montgomery and another individual named Bennett. The plaintiffs filed separate petitions alleging that Saleh was negligent and that the State was liable for his actions. The State moved for summary judgment, arguing that even if the plaintiffs could prove negligence there was no duty owed by Saleh under the public duty doctrine. The district court granted the motion, rejecting application of both the public duty doctrine and Kansas Tort Claims Act immunity. But the district court ruled the plaintiffs failed to proffer evidence sufficient to support a finding of causation in fact. The Court of Appeals affirmed the district court's findings on immunity and the public duty doctrine but remanded the case for further action on proof of causation. The Supreme Court granted Trooper Saleh and the State's petition for review.

ISSUES: (1) Application of the public duty doctrine; (2) breach; (3) causation; (4) immunity

HELD: The plain language of K.S.A. 8-1506 required emergency vehicle drivers to "drive with due regard for the safety of all persons." This language shows that the legislature did not intend to exempt emergency vehicle drivers from the consequences of reckless conduct. This statute imposes a specific duty on law enforcement and individuals may sue if they believe this duty has been breached. In order to prevail, the plaintiffs must prove that Saleh acted with reckless disregard for the safety of others. The evidence presented to the district court showed there is a material issue of fact as to whether Saleh exhibited reckless disregard when continuing to pursue the fleeing driver. Law enforcement's conduct during a pursuit can be the legal cause of a third party's injuries. Given the evidence presented to the district court, a jury could have found that the driver knew he was being pursued by Saleh. Because there is a statutory duty created by K.S.A. 8-1506(d), the discretionary function exception does not apply to Saleh's pursuit of the fleeing driver.

DISSENT: (Rosen, J., joined by Stegall, J., and Green, J., assigned) Justice Rosen would reverse the Court of Appeals and affirm the district court's grant of summary judgment, holding that the plaintiffs failed to establish a prima facie case that Saleh breached his duty of care under K.S.A. 8-1506.

STATUTE: K.S.A. 8-1506, -1506(d), 75-6101(b), -6103(a), -6104, -6104(e), -6104(n)

CONTRACTS
RUSSELL V. TREANOR INVESTMENTS
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 117,973—JUNE 26, 2020

FACTS: In 1997, the owner of two adjacent properties executed and recorded an Operation and Easement Agreement. The OEA restricted the building size and prohibited either property from being used as a regular grocery store. The OEA allowed for amendment if all of the current owners agreed in writing, and the OEA was amended to alter the original site plan. The amendment allowed for the creation of a multi-unit buildings with condominiums and retail space; Russell purchased a unit in the building in 2010. Treanor Investments purchased part of the property covered by the OEA in 2015, with hopes to amend the OEA and enlarge the property footprint to encompass a grocery store. Russell filed suit, claiming the OEA could not be amended without condominium owner consent. The parties filed competing motions for summary judgment and the district court agreed with Treanor, finding that it had been designated as the responsible owner, who had authority to act on behalf of other owners. The Court of Appeals affirmed, finding that the OEA and its amendments were clear and unambiguous in allowing the responsible owner to act on others' behalf. Russell's petition for review was granted.

ISSUES: (1) Authority to amend the OEA; (2) can amendment materially change the character of the real estate

HELD: The language of the OEA is plain and unambiguous, and it allows for the designation of a responsible owner to act on others' behalf. This language existed before Russell purchased his condominium. Nothing in the language prevents the responsible owner from further amending the OEA to alter size and use restrictions. Russell failed to raise a genuine issue of material fact about whether the proposed changes to the property would cause a material change in circumstances.

STATUTES: No statutes cited.

criminal

appeals—constitutional law—criminal law—criminal procedure—evidence 
state v. George
finney district court—affirmed
no. 120,190—june 26, 2020

FACTS: George convicted of first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. He appealed claiming: (1) his convictions were multiplicitous, arguing three of his convictions “folded” into one another and became a single offense; (2) prosecutorial error during cross-examination of a witness by commenting on the witness’ credibility; (3) trial court erred by allowing a witness to invoke Fifth Amendment and refuse to testify where the witness had been convicted and sentenced but his appeal was still pending; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Multiplicity; (2) prosecutorial error; (3) invocation of Fifth Amendment; (4) cumulative error

HELD: George’s convictions are not multiplicitous. Elements of each of three crimes arising from the same conduct but grounded in three different statutes are examined, finding: attempted aggravated robbery and aggravated assault are not multiplicitous; attempted distribution or possession with intent to distribute a controlled substance and attempted aggravated robbery are not multiplicitous; and attempted distribution or possession with intent to distribute a controlled substance is not multiplicitous with aggravated assault.

            George failed to preserve his evidentiary claim and cannot evade the contemporaneous objection requirement demanded by K.S.A. 60-404 by reframing the issue as one of prosecutorial error. Defense counsel objected to the State’s cross-examination question as going “beyond the scope” of direct examination, but did not argue any grounds relating to impeachment or character evidence. This was insufficient for appellate review of the issue now claimed.

            Error resulting from district court’s exclusion of a witness’ testimony, if any, was harmless. Court declines to decide whether a plea of nolo contendere waives the privilege against self-incrimination after sentencing but before the conclusion of direct appeals. Even if error is assumed in this case, the error is harmless because the substance of this witness’ proffered testimony was entirely presented at trial through the testimony of a detective.

            Cumulative error doctrine does not apply in case having only one assumed error.

STATUTES: K.S.A. 2019 Supp. 21-5301, -5301(a), -5412(a), -5412(b)(1), -5420, -5420(a), -5420(b), -5705(a)(1), -5705(d)(3)(C), 22-3601(b)(4), 60-261; K.S.A. 60-404, -422(c)

criminal procedure—evidence—sentencing—statutes
state v. satchell
sedgwick district court—affirmed in part and vacated in part
court of appeals—affirmed in part and reversed in part
no. 116,151—june 26, 2020

FACTS: Satchell charged with 2014 sexual offenses involving two children. To show his propensity to sexually abuse children, State was allowed to present evidence under K.S.A. 2019 Supp. 60-455(d) about Satchell’s 2010 abuse of three other children under similar circumstances. Jury convicted Satchell on all counts. Sentencing court ordered consecutive “hard 25” sentences for the eight off-grid offenses, followed by 100 months in prison for criminal sodomy. Court also ordered lifetime parole for the off-grid offenses and lifetime postrelease supervision for the on-grid offense. On appeal, Satchell claimed in part the district should not have allowed the 60-455 evidence because it was unduly prejudicial, and argued he should not have been given lifetime postrelease supervision. In unpublished opinion, Court of Appeals rejected both claims. Review granted

ISSUES: (1) K.S.A. 60-455 evidence; (2) sentencing

HELD: District court did not abuse its discretion by admitting evidence of the 2010 allegations. The 2010 evidence, if true, would be relevant. At issue is whether the probative value of this evidence was substantially outweighed by the risk of unfair prejudice. Factors in State v. Boysaw, 309 Kan. 526 (2019), to be considered in determining probative value and undue prejudice are analyzed on facts in this case. In balancing those factors, the district court can exclude otherwise admissible relevant evidence if its probative value is “substantially outweighed” by the risk of undue prejudice. Court acknowledges criticism of past decisions that have left out the term “substantially,” but finds the proper test has been applied despite the occasional shorthand references. Here, the risks of undue prejudice did not substantially outweigh the high probative value of the 2010 evidence.

            District court erred by ordering lifetime postrelease supervision. Under K.S.A. 2016 Supp. 21-6819, in effect at the time of Satchell’s offenses, the proper post release supervision term is lifetime parole when the district court imposed consecutive on-grid and off-grid sentences. The lifetime postrelease supervision portion of Satchell’s sentence is vacated. 

STATUTES: K.S.A. 2019 Supp. 60-455(d); K.S.A. 2016 Supp. 21-6627, -6819, -6819(b)(2), 22-3717, -3717(d)(1)(G), -3717(u); K.S.A. 60-406, -407(f), -445

 

Kansas Court of Appeals

Civil

AGENCY ACTION—MEDICAL EXPENSES
UNIVERSITY OF KANSAS HOSPITAL AUTHORITY V. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, KANSAS
WYANDOTTE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,472—JUNE 26, 2020

FACTS: After seeing a man driving without headlights and with a suspended license, Ottawa police engaged in a high-speed chase. Officers lost track of the vehicle, and by the time they found it, the driver had crashed and the vehicle was fully engulfed in flames. Rescue personnel found the driver on the ground, suffering from severe injuries. Officers did not search the driver, and he was not placed under arrest, although a hold was placed while the man was in the hospital. After his release, the driver was taken to jail based on outstanding warrants that were unrelated to the police chase. After an investigation, the driver was charged with felony fleeing and eluding. The University of Kansas Hospital Authority filed suit against the City of Ottawa and the Franklin County Board of County Commissioners in an attempt to recoup some of the man's considerable medical bills. All parties filed motions for summary judgment. After considering arguments, the district court found that the driver was in the City's custody when medical treatment was initiated. But for the driver's injuries, he would have been arrested when the chase ended. The district court granted summary judgment in the Hospital's favor against the City but found that the County was not involved enough to be responsible for bills. The City appealed and the Hospital cross-appealed.

ISSUES: (1) Whether the driver was in custody; (2) existence of disputed material facts

HELD:  "Custody" has a broad definition. A formal arrest is not always necessary to show that a person is in custody. It is undisputed that County deputies did not witness any crimes being committed and did not participate in the chase. This means it is also undisputed that the driver was not in County custody when medical care was sought, and the County has no obligation to contribute to the driver's medical bills. There are lingering fact questions, though, about whether the driver was in the City's custody. Specifically, there was no stipulation that the driver was stopped by law enforcement, triggering the statutory obligation to take him into custody. Because there is a lingering fact question, summary judgment was not appropriate. The case must be remanded to clear up these issues.

STATUTE: K.S.A. 2019 Supp. 8-1568(b), -1568(c), 22-2202(d), -2202(i), -4612, -4612(a)

CONTRACTS—OIL AND GAS
THOROUGHBRED ASSOCIATES V. KANSAS CITY ROYALTY COMPANY
COMANCHE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,068—JUNE 26, 2020

FACTS: Beginning in 1997, Thoroughbred acquired oil and gas leases. After it struck a big well, Thoroughbred acquired leases on nearby property to prevent competition. However, there was a 1/3 mineral interest in one of these tracts which remained unleased. In an attempt to acquire that lease, Thoroughbred contacted the owner, Oxy USA Inc., about selling. The parties signed a lease in 1998 which allowed Thoroughbred to unitize the lease. The lease would continue for as long as Thoroughbred produced oil or gas in paying quantities, either from the tract or from the unit as a whole. Oxy had a 3/16 royalty on production from the tract. In 1999, Oxy sold its interest in the lease to KC Royalty. Tensions arose when KC Royalty believed that gas from the unit was being drained into another unit that was not covered by KC Royalty's lease and that KC Royalty believed that Thoroughbred owed it unpaid royalties. After extensive litigation and another appeal which was heard by the Kansas Supreme Court, the parties ended up back in district court. That court ruled in favor of KC Royalty, finding that the parties agreed to unitize the Lease, that KC Royalty had waived certain conditions, and that Thoroughbred was equitably estopped from enforcing the conditions. After ruling that all liquids produced in the unit were incidental byproducts of the gas, the court concluded that KC Royalty's interest included all unit production. Both parties appealed.

ISSUES: (1) Whether the parties included the lease in the unit by modification, waiver, or estoppel; (2) award of interest in oil production arising from gas lease; (3) attorney fees

HELD: Substantial evidence supported the district court's finding that the parties modified their lease to include the parcel in the larger unit. This is proven by both Oxy and KC Royalty accepting royalty payments. KC Royalty had the unilateral power to waive conditions and allow Thoroughbred to include the lease in the larger unit. All evidence shows that KC Royalty intended to modify the agreement. Because Thoroughbred represented that KC Royalty's lease was in the unit for over three years, it is estopped from changing its mind now. A portion of the unit included a parcel which was a separate, oil-producing formation where oil production far exceeded gas production. There was no evidence that the oil and gas in this particular parcel was condensate. The district court improperly included this parcel in its royalty calculations, and the case must be remanded for accurate calculations. The district court did not abuse its discretion by denying KC Royalty's motion for attorney fees.

STATUTE: K.S.A. 55-205, -1617

CLASS ACTIONS—OIL AND GAS
COOPER CLARK FOUNDATION V. OXY USA, INC.
GRANT DISTRICT COURT—AFFIRMED
NO. 120,371—JUNE 26, 2020

FACTS: This appeal involves a class-action lawsuit over natural gas leases. After extracting gas, Oxy sent most of it for processing. Cooper, representing the wells included within the class action, disputes the method Oxy was using to calculate royalties for all Class Leases. The class action petition was filed in 2017, alleging that Oxy underpaid royalties from July 2007 through April 2014. Cooper's specific grievances included Oxy passing through processing fees, improperly calculating volume, using the wrong price structure, and not paying interest on conservation fees. The district court certified Cooper's class, and Oxy appealed that certification.

ISSUE: (1) Whether class was properly certified

HELD: Gas produced from Class wells wasn't marketable until it was in a condition suitable for its intended market. This didn't occur until after it was processed. The district court did not abuse its discretion when it found that the class petition raised questions of law and fact that were common to all class members. All of the claims can be litigated classwide without individualized evidence; this includes a dispute over whether Oxy owes interest for conservation fees that were repaid to class members. There are similarly no individualized issues regarding Oxy's statute of limitations defense. The district court rigorously analyzed the requirements for class certification and correctly concluded that the class was appropriate.

STATUTES: K.S.A. 2019 Supp. 60-223, -223(a), -223(b); K.S.A. 16-201, 55-1614, -1615

criminal 

appeals—appellate procedure—constitutional law—criminal procedure— damages—insurance—restitution—sentencing
state v. robinson
lyon district court—affirmed
no. 120,903—june 26, 2020

FACTS: Robinson pled no contest to battery of law enforcement officer. Sentencing included requirement that Robinson pay $2,648.56 in restitution to reimburse workers compensation insurance carrier that paid medical expenses of officer injured as a result of the battery. Robinson appealed claiming the statutes authorizing the district court to order restitution violate Section 5 of Kansas Constitution Bill of Rights by depriving him of right to have a civil jury determine the amount of damages, and violate the Sixth Amendment of U. S. Constitution by allowing a judge to determine the amount of restitution to be awarded the victim. He also claimed district court erred in awarding restitution to be paid to an insurance carrier. State contends the constitutional issues, raised for first time on appeal, were not properly preserved.

ISSUES: (1) Unpreserved claims; (2) restitution—Section 5 of Kansas Constitution Bill of Rights; (3) restitution—Sixth Amendment of U.S. Constitution; (4) payment to insurance carrier

HELD: The issues not raised below are considered because they potentially implicate a claim to the fundamental right to a trial by jury under the Kansas and United States constitutions, and a decision on the merits would serve the ends of justice.

            Robinson failed to establish that Section 5 of the Kansas Constitution Bill of Rights requires that a jury impose criminal restitution under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2). Criminal restitution is not a civil remedy and no provision in the Kansas territorial statutes mentions criminal restitution.

            District court’s restitution order did not violate the Sixth Amendment. Court of Appeals panels have addressed whether Sixth Amendment applies to criminal restitution, and review of one unpublished opinion is currently pending. Under State v. Huff, 50 Kan.App.2d 1094 (2014), rev. denied 302 Kan. 1015 (2015), restitution is not punishment, but even if punishment is assumed, the Kansas statutes do not violate the Sixth Amendment. Huff is consistent with cited  federal and state court opinions, and courts have concluded that Southern Union Co. v. United States, 567 U.S. 343 (2012), does not extend Apprendi and its progeny to restitution. Kansas statutes governing restitution impose neither mandatory minimum amounts nor mandatory maximum amounts, so they do not trigger concerns in Apprendi or Alleyne.

            Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) prohibit a district court from awarding restitution to an insurance carrier that has suffered damage or injury as a result of the defendant’s crime.

DISSENT (Leben, J.): Would vacate the restitution award because Robinson had a right to have a jury determine the amount of damage or loss he caused any victim of his crime. Text of Sixth Amendment, history, and precedent support a holding that Sixth Amendment applies to restitution. Cases cited by the majority as rejecting the claim that Apprendi applies to restitution are criticized. The two Kansas restitution statutes violate Apprendi by allowing judges to increase the statutory maximum punishment for an offense beyond that authorized by the jury’s verdict or the plea agreement. Even if Robison had no jury-trial right under Sixth Amendment, he had one under Section 5 of Kansas Constitution Bill of Rights.

STATUTES: K.S.A. 2017 Supp. 21-5413(c)(3)(D), -6604, -6604(b)(1), -6604(b)(2), -6607(c)(2), -6608(c)(7), -6613(a), -6613(b), 60-238, -2401, -4304(b); K.S.A. 1991 Supp. 21-6607(c)(2); K.S.A. 60-4301

Tags:  Agency Action  Appeals  Appellate Procedure  Class Actions  Constitutional Law  Contracts  Criminal Procedure  Damages  Evidence  Insurance  Lyon  Medical Expenses  Oil and Gas  Public Duty  Restitution  Sentencing  Statutes  Torts 

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June 12, 2020 Digests

Posted By Administration, Monday, June 15, 2020

Kansas Supreme Court

 

criminal 

attorneys and clients—criminal procedure—motions—sentencing
state v. adams
sedgwick district court—affirmed
no. 120,475—june 12, 2020

FACTS: District court allowed Adams to dismiss his appointed attorney and to proceed pro se at trial, resulting in plea agreement for guilty plea to criminal charges including premeditated first-degree murder. His request for reappointment of attorney for sentencing was granted. Sentence was imposed, which included a hard 50 sentence, following the plea agreement. Adams later filed motion to withdraw plea stating he was prepared to offer evidence from Iowa and Kansas departments of corrections of his unmedicated schizophrenia to show his plea was involuntary. He also filed K.S.A. 60-1507 motion alleging appointed counsel was ineffective because he did not address at sentencing whether Adams had an unmedicated mental health diagnosis, or have Adams undergo a mental health evaluation. District court held preliminary hearing with new appointed counsel and denied both motions. Adams appealed.

ISSUES: (1) Post-sentence motion to withdraw plea; (2) ineffective assistance of counsel at sentencing

HELD: District court properly concluded there was no manifest injustice because even if Adams had been allowed to present evidence regarding his previous mental health status, that diagnosis was not dispositive and the overall record would still conclusively show he was entitled to no relief.

            Under totality of circumstances, appointed counsel’s decision to forego a mental health evaluation of Adams does not constitute deficient representation when record shows Adams was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceeding. There were no red flags in the record to suggest appointed counsel should have investigated Adams’s mental health. Adams’s reliance on “duty to investigate” in State v. Orr, 262 Kan. 312 (1997), is misplaced.

STATUTES: K.S.A. 2019 Supp. 22-3210(d)(2); K.S.A. 22-3301(1), 60-1507

criminal law—criminal procedure—evidence—statutes
state v. dinkel
saline district court—remanded with directions; court of appeals—reversed
no. 113,705—june 12, 2020

FACTS: Jury convicted a school counselor of two counts of rape of 13-yr-old boy (K.H.). Dinkel appealed on claims related to her defense that the K.H. had raped and then blackmailed her into continuing sexual encounters. Dinkel argued the district court’s exclusion of this evidence violated evidentiary rules and her constitutional right to present a defense. Court of appeals affirmed in unpublished opinion, concluding the rape of a child has no mental culpability requirement thus Dinkel’s intent was irrelevant. Review granted.

ISSUE: K.S.A. 2012 Supp. 21-5503(a)(3) - Evidence relevant to voluntary act requirement

HELD: Court of Appeals erred in concluding that whether K.H. forced the sexual encounter was irrelevant. As defined in K.S.A. 2012 Supp. 21-5503(a)(3), rape of a child under age 14 requires a voluntary act on the part of the defendant. Dinkel’s claim that she was forcibly raped is relevant since the rape of Dinkel negates the voluntary act requirement of rape of a child under 14. Jurisdiction retained while case is remanded to district court for Van Cleave hearing to determine whether defense trial counsel was ineffective for failing to argue the State never established the voluntary act requirement.  

STATUTE: K.S.A. 2012 Supp. 21-5201, -5202, -5202(a), -5202(b), -5202(h), -5202(d), -5203(b), -5501(a), -5503(a)(3)

constitutional law—criminal procedure—preemption—statutes
state v. Garcia
johnson district court—affirmed; court of appeals—affirmed
no. 112,502—june 12, 2020

FACTS: Kansas Supreme Court reversed Garcia’s jury conviction for identity theft, holding prosecution based on the use of his W-4 form was preempted by the Immigration and Reform and Control Act (IRCA). State v. Garcia, 306 Kan. 1113 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud, and whether district court’s failure to give unanimity instruction was clearly erroneous, was improvidently granted. These issues are not addressed on the merits.

STATUTES: 8 U.S.C. § 1324a(b)(5); K.S.A. 2012 Supp. 21-6107

constitutional law—evidence—motions
state v. Glover
douglas district court—reversed; court of appeals—affirmed
no. 116,446—june 12, 2020

FACTS: District court granted Glover’s motion to suppress evidence obtained during a traffic stop, finding the officer lacked reasonable suspicion of illegal activity when he stopped the truck in violation of Fourth Amendment. Court of Appeals reversed. State v. Glover,  54 Kan. App. 2d 377 (2017). Kansas Supreme Court reversed and affirmed the district court’s suppression ruling. 308 Kan. 590 (2018). State’s writ of certiorari granted.

ISSUE: Fourth Amendmenttraffic stop

HELD: Consistent with Kansas v. Glover, 589 U.S. __ (2020), an investigative traffic stop made after running a vehicle’s license plate and learning the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment if the officer lacks information negating an inference that the owner is driving the vehicle. Here, the stipulated facts reveal no information known by the deputy sufficient to rebut that reasonable inference. Kansas Supreme Court’s judgment is vacated and case is remanded to district court for further proceedings.

STATUTES: None

constitutional law—criminal procedure—preemption—statutes
state v. morales
johnson district court—affirmed; court of appeals—affirmed
no. 111,904—june 12 2020

FACTS: Kansas Supreme Court reversed Morales’ convictions for identity theft and making a false information, holding prosecution based on use of a Social Security number belonging to another person for employment was preempted by the Immigration and Reform and Control Act (IRCA). State v. Morales, 306 Kan. 1100 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud was improvidently granted. This issue is not addressed on the merits.

STATUTE: 8 U.S.C. § 1324a(b)(5)

criminal procedure—restitution—sentencing
state v. tucker
wyandotte district court—reversed
no. 119,242—june 12, 2020

FACTS: Tucker pled guilty to one count of capital murder and was sentenced to prison for life without parole. District court ordered payment of $5,000 in restitution without an explicit order for payment during Tucker’s incarceration, and acknowledged that restitution will never be paid. Tucker appealed.

ISSUE: Restitutionunworkable plan

HELD: Under circumstances in this case, district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without possibility of parole to pay restitution even while recognizing the restitution would not be paid. State v. Holt, 305 Kan. 839 (2017), State v. Shank, 304 Kan. 89 (2016), and State v. Alcala,  301 Kan. 832 (2015), are distinguished. Restitution is the rule, and unworkability is the exception. Here, Tucker met the burden of establishing that the restitution plan was unworkable. Restitution order is reversed.

STATUTE: K.S.A. 2015 Supp. 21-6604(b)(1)

 

Kansas Court of Appeals

Civil

ADMINISTRATIVE LAW—JURISDICTION
BRUNGARDT V. KANSAS DEPARTMENT OF REVENUE
FINNEY DISTRICT COURT—REVERSED AND REMANDED
NO. 120,409—JUNE 12, 2020

FACTS: Corporal Kerley arrested Brungardt for driving under the influence. Corporal Kerley administered a breath test, following the mandatory procedures for the Intoxilyzer 9000 machine. The machine allows officers to fill out the required forms—including the DC-27 certification form—electronically. Because his blood-alcohol level exceeded legal limits, Brungardt's driver's license was administratively suspended by the Kansas Department of Revenue. In requesting an administrative hearing, Brungardt claimed, among other things, that the DC-27 form was invalid because it lacked an original, non-electronic signature. Although the hearing officer affirmed his suspension, the district court reversed during judicial review. The court found no flaws in Corporal Kerley's performance but ruled that Corporal Kerley had physically signed the machine when he created his electronic signature profile, before Brungardt's test was performed. K.S.A. 8-1002(b) establishes that certification of the DC-27 form occurs upon signing, and the district court reasoned that Corporal Kerley signed a blank page when he established his signature profile. The department appealed.

ISSUES: (1) Jurisdiction; (2) validity of electronic signature

HELD: Brungardt's petition for judicial review included his claim that the DC-27 form was invalid. Even though he didn't argue the exact grounds relied on by the district court when overturning the suspension, Brungardt gave adequate notice that the validity of the DC-27 was in question. This gave the district court jurisdiction to rule. "Signing" encompasses more activity than merely writing a name, and Kansas law recognizes electronic signatures. It is the intent of signing, not the physical form, which controls the effectiveness of the signature. Corporal Kerley followed the procedures of K.S.A. 8-1002(b) and affixed his signature when done. The district court improperly interpreted the statute and erred by reversing the suspension of Brungardt's driver's license.

STATUTES: K.S.A. 2019 Supp. 8-1001, -1002(a), -1002(b), -1002(f); K.S.A. 77-614(b)(6)

Criminal

EQUAL PROTECTION—SEX CRIMES
STATE V. LITTLE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,214—JUNE 12, 2020

FACTS: Little was convicted of multiple, high-level felonies, including rape and aggravated criminal sodomy. These convictions meant that on top of his prison sentence, Little was given a lifetime term of postrelease supervision. Little appealed, arguing that this lifetime term of postrelease violated his right to equal protection.

ISSUE: (1) Equal protection

HELD: Equal protection requires that similarly situated people be treated alike. Little compares his postrelease term to the shorter terms given to people who are convicted of other serious felonies, like murder. But sex offenders are not similarly situated to people convicted of murder. Individuals convicted of certain sex offenses have much higher rates of recidivism, and the lifetime term of postrelease supervision serves the dual purpose of allowing rehabilitation while also protecting the public from future offenses.

STATUTE: K.S.A. 2008 Supp. 22-3717(d)(1)(G)

Tags:  administrative law  Attorneys and Clients  Constitutional Law  criminal law  criminal procedure  equal protection  evidence  jurisdiction  motions  preemption  restitution  sentencing  sex crimes  statutes 

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