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February 14, 2020 Digests

Posted By Administration, Tuesday, February 18, 2020

Kansas Supreme Court

criminal

appeals—constitutional law—motions—sentences
state v. peterson
Geary District Court—affirmed
No. 119,314—february 14, 2020

FACTS: Peterson filed 2007 no contest plea to first-degree murder. Ten years later he filed motion to correct an illegal sentence, arguing his hard 25 life sentence was disproportionate in violation of federal and state constitutional protections against cruel and unusual punishment. District court issued a nunc pro tunc order, agreeing that lifetime postrelease supervision should not have been imposed, but rejected Peterson’s constitutional claims. Peterson appealed, challenging the constitutionality of his hard 25 sentence.

ISSUE: (1) Motion to Correct Illegal Sentence—Constitutional Challenge

HELD: Merits of Peterson’s constitutional arguments are not considered. A motion to correct an illegal sentence cannot raise claims that a sentence is unconstitutional.

STATUTES: None

criminal procedure—sentences—statutes
state v. fowler
sedgwick district court—affirmed
court of appeals—affirmed
No. 116,803—February 14, 2020

FACTS: Fowler pleaded guilty to felony possession of methamphetamine, felony domestic battery, and violation of a protective order. The domestic battery conviction qualified as a felony because it was his third such conviction within five years. In calculating criminal history score for the drug possession conviction, district court included the same two misdemeanor domestic battery convictions used to elevate the current domestic battery to a felony. Fowler appealed, arguing the district court impermissibly double counted the two prior misdemeanor domestic battery convictions. Court of Appeals affirmed. 55 Kan.App.2d 92 (2017). Fowler’s petition for review granted.

ISSUE: (1) Sentencing—Multiple Conviction Case

HELD: Prior cases dealing with double counting statute have not explicitly addressed question of which crime does K.S.A. 2015 Supp. 21-6810(d)(9)’s phrase “the present crime of conviction” refer? Design and structure of the Kansas Sentencing Guidelines Act is reviewed. Here, sentencing judge did not violate K.S.A. 2015 Supp. 21-6810(d)(9)’s restriction on double counting by using the same two prior misdemeanor domestic batteries both to calculate Fowler’s criminal history for his base sentence on the primary grid crime, and to elevate the current domestic battery to a felony.

CONCURRENCE (Rosen, J.): Agrees that including Fowler’s prior domestic battery convictions in the criminal history calculation for his primary grid conviction did not violate the double-counting provision of K.S.A. 2015 Supp. 21-6810(d)(9), but writes separately to emphasize that the confusion in this case necessitating two appellate courts addressing this sentencing issue is completely avoidable. Citing his concurring opinion in State v. Garcia, 295 Kan. 53 (2012), a predetermined, accurate criminal history should be a required part of plea negotiations.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6801 et seq., -6802(a), -6802(c), -6803(c), -6803(d), -6803(k), -6803(l), -6805, -6805(c)(2), -6805(c)(3), -6806, -6806(c), -6806(d), -6807, -6808, -6810(d)(9), -6810(d)(10), -6819, -6819(b)(2), -6819(b)(3), -6819(b)(4), -6819(b)(5); K.S.A. 2015 Supp. 8-1567(b)(1)(D), -1567(b)(1)(E), 21-5414(b)(3), -5701 et seq., -5706(a), -5924(a)(4), -5924(b)(1), -6804, -6804(c), -6804(d), -6804(e)(1), -6804(e)(2), -6804(e)(3), -6804(f), -6804(g), -6804(h), -6804(i), -6804(j), -6804(k), -6810(a), -6810(d)(9), -6811(a), -6811(i); and K.S.A. 21-4710(d)(11), 22-3504(1)

appellate procedure—criminal law—juries—jury instructions
state v. boeschling
reno district court—affirmed
court of appeals—affirmed
No. 116,757–February 14, 2020

FACTS: Boeschling convicted in jury trial on charges of nonresidential burglary, theft of a pickup, and unlawful possession of a firearm. On appeal he argued the district court’s response to jury’s mid-deliberation question about whether nullification can be applied to the firearms charge was reversible error. He also claimed error in the jury instruction defining the elements of burglary, and in the instruction that cautioned the jury about accomplice testimony. Court of Appeals affirmed in unpublished opinion. Boeschling’s petition for review granted.

ISSUES: (1) Jury Nullification; (2) Jury Instruction—Burglary; (3) Jury Instruction—Accomplice Testimony

HELD: State’s preservation challenge is not properly before the court because State failed to argue lack of preservation to Court of Appeals, and failed to cross-petition the panel’s opinion. District judge’s response - “You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case.” - to jury’s nullification question was not error. The response did not amount to affirmative misinformation, imply that nullification did not apply, or amount to a warning that nullification would violate the jurors’ oaths.

District court judge erred by adding a culpable mental state of “knowingly” to the burglary instruction that otherwise included the correct mens rea of “intent to commit a theft.” No clear reversible error resulted in this case because the erroneous wording added to rather than subtracted from State’s burden of proof.

State v. Anthony, 242 Kan. 493 (1988), is still good law. A district court judge may instruct a jury to view an accomplice’s testimony with caution even when that testimony is favorable to a criminal defendant. The accomplice instruction in this case was both legally and factually appropriate.

STATUTES: K.S.A. 2018 Supp. 21-5202(b), 22-3414(3), 60-247(d); and K.S.A. 2015 Supp. 21-5807(a)(2)

criminal procedure—motions—sentences
State v. Newman
Shawnee District Court—affirmed in part and vacated in part
No. 118,608—February 14, 2020

FACTS: Newman entered guilty plea to first-degree felony murder and attempted second-degree intentional murder. Prior to sentencing he moved to withdraw his please, citing emotional distress due in part to his mother’s hospitalization, and newly discovered evidence District court denied the motion. Eight days later, Newman filed motion to vacate his plea due to ineffective assistance of counsel. District court denied that motion, finding defense counsel was more credible than Newman. Sentence imposed included lifetime postrelease supervision for the first-degree murder conviction. Newman appealed the denials of his motions to withdraw his pleas, and the imposition of lifetime postrelease supervision.

ISSUES: (1) Withdrawal of Guilty Pleas; (2) Sentencing

HELD: District court’s denial of both motions is affirmed. No abuse of discretion shown in district court’s conclusion that Newman’s plea was fairly and understandingly made. And appellate court will not reassess district court’s credibility findings.

Parties correctly agreed that district court erred in ordering lifetime postrelease supervision on the first-degree murder conviction. That portion of Newman’s sentence is vacated.

STATUTES: K.S.A. 2018 Supp. 22-3210(d)(1); K.S.A. 2010 Supp. 22-3717(b)(2); and K.S.A. 21-3401, -4706, -4706(c)

Tags:  appeals  constitutional challenge  Geary District Court  motions  Reno District Court  Sedgwick District Court  Shawnee District Court 

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January 10, 2020 Digests

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

Kansas Supreme Court

criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No errors support Lyman’s cumulative error claim.

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

Kansas Court of Appeals

CIVIL

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

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

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

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

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

criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: Appellate jurisdiction

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

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

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

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December 20 and December 27, 2019 Digests

Posted By Administrator, Friday, January 3, 2020

Kansas Supreme Court

criminal

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

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

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

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

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

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

Kansas Court of Appeals

Civil

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

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

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

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

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

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

criminal 

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

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

ISSUE: (1) Dispositional departure sentence

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

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

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

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

ISSUE: (1) Probation revocation—constitutional due process

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

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

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

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

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

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

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

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

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October 25, 2019 Digests

Posted By Administration, Monday, October 28, 2019

Kansas Supreme Court

 

Civil

DAMAGES—PRODUCTS LIABILITY
CORVIAS MILITARY LIVING, LLC V. VENTAMATIC, LTD. AND JAKEL, INC.
GEARY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART
DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, REMANDED WITH DIRECTIONS
NO. 116,307—OCTOBER 25, 2019

FACTS: Corvias is a construction firm specializing in military housing. Corvias built thousands of units near Fort Riley. In these homes, it installed bathroom ceiling fans manufactured by Ventamatic, Ltd. and Jakel Motors, Inc. After installation, several fans caught fire and damaged homes. Corvias not only incurred damage with fire remediation, it also needed to replace all of the fans in other units, so it filed suit. The district court granted summary judgment to both defendants, finding that the suit was unquestionably a products liability claim governed by the Kansas Product Liability Act. The court ruled that all of Corvias' claims for damages was barred by the economic loss doctrine. The Court of Appeals reversed the grant of summary judgment on the issue of fire damage, finding that the fans were not an integral part of the house as a whole. But the panel did not address whether Corvias had an implied warranty claim covering whether the fans were inherently dangerous. Both defendants filed a petition for review, which was granted.

ISSUE:  (1) Recovery under the KPLA

HELD: The KPLA covers all product liability causes of action. That Act included liability for "damage to property", which shows that the Legislature intended to allow recovery for damage to any property, even the product itself. The Kansas economic loss doctrine does not preclude recovery for property damage within a product liability cause of action. Corvias' costs for fan replacement are undisputedly economic losses, and therefore not compensable under the KPLA. But the KPLA does not subsume all other legally viable causes of action for loss recovery. Corvias brought an action for unjust enrichment. The record is insufficient to show whether that claim can succeed, so the case is remanded.

STATUTE: K.S.A. 60-3302(c), -3302(d), -3302(d)(1)

 

Criminal

CRIMINAL THREAT—CONSTITUTION
STATE V. BOETTGER
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 115,387—OCTOBER 25, 2019
 

FACTS: One evening, Boettger was visiting with the employees of a convenience store. He was lamenting the fact that he had found his daughter's dog in a ditch after it had been shot. Boettger was upset that the sheriff's department would not investigate. Boettger told one employee that if he found the perpetrator they "might find themselves dead in a ditch somewhere." The employee who heard the remarks knew Boettger and his speaking style and was not concerned. Another employee, who knew Boettger very well, was closely related to a detective with the sheriff's department. Boettger, who was visibly angry, approached this man and said that he would "end up finding [his] dad in a ditch." The employee was concerned and ultimately called the police to report the incident. Boettger denied any intent to threaten or cause harm, but he was still convicted of one count of reckless criminal threat. Boettger appealed, but the Court of Appeals confirmed his convictions. Boettger's petition for review was granted.

ISSUE: (1) Whether K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad

HELD: Some tension can arise when the government attempts to criminalize true threats. An important inquiry centers on the speaker's intent to intimidate and cause fear. In order to be constitutional, the statute must require more than a purpose to communicate just threatening words. Instead, it must also require that the speaker wants the recipient to believe that the speaker intends to act violently—an intent to intimidate or convey a threat. K.S.A. 2018 Supp. 21-5415, which allows an individual to be punished for reckless conduct, potentially criminalizes protected speech and is facially overbroad. Boettger's conviction under that statute must be reversed.

STATUTES: U.S. Const. amend. I; K.S.A. 2018 Supp. 21-5415(a)(1)

 

FIRST-DEGREE MURDER—JURY INSTRUCTIONS
STATE V. DEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,568—OCTOBER 25, 2019

FACTS: Dean was accused of firing his weapon while at a crowded party in revenge for the death of his fellow gang member. After the shooting was over, Dean was charged with one count of premeditated murder, four counts of aggravated battery and one count of criminal possession of a firearm. During deliberations, the presiding juror brought in a personal notebook which contained notes that were taken outside of the trial. The district court dismissed this juror and questioned the rest of the panel, all of whom denied taking notes or seeing notes from another juror. As he was leaving, the removed panel member gave a partially completed verdict form to the bailiff. It is unknown what the form said, but after seeing it defense counsel moved for a mistrial, which was denied. Dean was convicted as charged. He appeals.

ISSUES: (1) Necessity of a mistrial, (2) cautionary instruction, (3) motion for new trial, (4) evidence of premeditation, (5) admissibility of evidence of gang affiliation

HELD: Because the partially completed verdict form is not in the record on appeal, there is no way to know its impact on the jury. Dean had the burden to designate a record adequate to show error. In that absence, he is not entitled to relief. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is potentially benefitting from the testimony. Defendant's cross-examination showed the witness' potential bias to the jury. The district court did not err by finding that evidence regarding the cooperating witness' arrangement was neither newly discovered nor material. And Dean's failure to provide the new evidence in the record on appeal precludes review. Premeditation involves forming the intent to kill beforehand. In this case, the State presented sufficient evidence of premeditation. The gang affiliation evidence presented at trial was relevant and not unduly prejudicial, especially in light of the mitigating instruction given by the district court.

STATUTES: K.S.A. 2018 Supp. 22-3412(c), -3501(l); K.S.A. 22-3423(1)(c), 60-401(b)

 

CRIMINAL THREAT—CONSTITUTION
STATE V. JOHNSON
MONTGOMERY DISTRICT COURT—COURT OF APPEALS IS REVERSED DISTRICT
COURT IS REVERSED, CASE REMANDED
NO. 116,453—OCTOBER 25, 2019

FACTS: Johnson's mother contacted law enforcement with claims that Johnson was abusing her. A deputy responded to her home and noticed signs of a struggle, but Johnson was not at the residence. A return visit occurred the next day after Johnson's mother claimed that he made statements in which he threatened to either harm or kill her. Johnson was charged with one count of criminal threat—for allegedly tearing a telephone off of the wall and threatening to burn down his mother's home and kill her. At trial, both Johnson's mother and wife testified that within their family it was common to threaten to kill each other, but that they never actually meant it. Johnson was also injured and in pain, causing frequent angry outbursts. A jury convicted Johnson of criminal threat. He appealed, and the Court of Appeals affirmed his conviction and Johnson's petition for review was granted.

ISSUES: (1) Sufficiency of the evidence, (2) constitutionality of K.S.A. 2018 Supp. 21-5415(a)(1)

HELD: The State charged Johnson with either intentionally or recklessly making a criminal threat. The jury was instructed on both mental states but was not asked to specify under which state Johnson was convicted. But the State presented sufficient evidence to convict Johnson under either theory. The government can only regulate "true threats." The "reckless disregard" provision of K.S.A. 2018 Supp. 21-5415(a)(1) encompasses more than true threats and thus potentially punishes constitutionally protected speech. It is unconstitutionally overbroad. Even though Johnson was potentially convicted for intentional behavior, the unconstitutionality of the reckless disregard provision is prejudicial enough that Johnson's conviction must be reversed.

DISSENT: (Stegall, J.) The majority is correct that K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad. But the error is not prejudicial under a modified harmlessness analysis, and his conviction should be affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5202(c), -5415(a)(1)

Tags:  constitution  criminal threat  damages  Douglas District Court  first degree murder  Geary District Court  jury instructions  Montgomery District Court  product liability  Sedgwick District Court 

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