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January 8, 9 and 11, 2019 Digests

Posted By Administration, Tuesday, January 15, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF LAURENCE M. JARVIS
NO. 07012 – JANUARY 8, 2019

FACTS: In a letter addressed to the Clerk of the Appellate Courts, Laurence M. Jarvis voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Jarvis' license was indefinitely suspended and he faced an additional formal hearing on allegations of misconduct.

HELD: The Court accepted the surrender of Jarvis' license and ordered that he be disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF JOHN M. KNOX
NO. 119,254 – JANUARY 11, 2019 

FACTS: The Disciplinary Administrator filed a formal complaint against Knox which alleged violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 3.2 (expediting litigation); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); (8.4)(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law); and Rule 207(b) (failure to cooperate in a disciplinary action). The matter arose after Knox was retained to represent clients in a personal injury matter. He failed to perform any of the duties for which he was hired and failed to communicate with his clients. Knox failed to respond once the formal complaint was filed.

HEARING PANEL: The panel determined that although Knox failed to appear he was given appropriate service and notice of the formal hearing. There was adequate evidence to show that Knox committed the violations as alleged in the complaint. The hearing panel found a number of aggravating circumstances, including the vulnerability of the client and Knox's patterns of misconduct. Knox's failure to participate in the disciplinary proceeding meant there were no mitigating circumstances to consider. The Disciplinary Administrator recommended that Knox be disbarred and the hearing panel agreed.

HELD: Knox did not appear at the hearing before the Kansas Supreme Court. The court determined that there was clear and convincing evidence that Knox violated multiple rules of professional conduct. The Disciplinary Administrator continued to recommend disbarment and the court agreed. Knox is disbarred.

ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF SUSAN L. BOWMAN
NO. 109,512 – JANUARY 9, 2019

FACTS: The court suspended Bowman's license to practice law in Kansas on October 18, 2013, for a period of 12 months. Bowman was required to undergo a reinstatement hearing prior to reconsideration being considered. After the hearing, Bowman was reinstated and placed on probation.  Bowman filed a motion for discharge from probation in November 2018, along with affidavits demonstrating compliance with the terms of probation. The Disciplinary Administrator did not object.

HELD: After reviewing the motions and affidavits, and the response of the Disciplinary Administrator, the court grants Bowman's motion for discharge from probation.

Civil

CONDEMNATION—STATUTORY INTERPRETATION
NAUHEIM V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT – REVERSED and REMANDED
COURT OF APPEALS – AFFIRMED
NO. 114,271 – JANUARY 11, 2019

FACTS: The City of Topeka negotiated with business owners to purchase land in order to build a drainage system for city property. The negotiations resulted in the City's purchase of the property and the businesses' relocation without the use of eminent domain power. After the move, the business owners sued the City for relocation costs under K.S.A. 26-518, which allows for costs when real property is acquired by a condemning authority through negotiation in advance of a condemnation action. The City countered that it never intended to condemn the property and also noted that the business owners were not "displaced persons" under the statute because the property was actually owned by a landlord. The district court granted the City's motion for summary judgment, holding that the business owners were not displaced persons and that the property acquisition was not made in advance of a condemnation. On appeal, the Court of Appeals reversed, finding that the business owners were displaced persons. The panel remanded for further factual findings on the question of whether the purchase negotiations were conducted in advance of a condemnation. The business owners appealed the question of whether a displaced person must prove that a condemning authority threatened condemnation or took affirmative action towards condemnation prior to acquisition. That petition for review was granted. The City did not cross-petition on the Court of Appeals' other findings.

ISSUES: (1) Must a displaced person prove that a condemning authority had an intent to condemn in order to receive statutory relocation assistance

HELD: K.S.A. 26-518 requires a condemning authority to pay relocation costs when an acquisition occurs through negotiation before a condemnation action or when an acquisition actually occurs through condemnation. Nothing in the statute requires the City to pay relocation benefits as part of any public project. Whether a negotiation occurs "in advance of" a condemnation action is a question of fact that must be proven by a preponderance of the evidence.

STATUTES: K.S.A. 2017 Supp. 26-201, -501(a), -518, -518(a); K.S.A. 12-101, Second, -101, Fourth

CRIMINAL  

CRIMINAL PROCEDURE – DISCOVERY – MOTIONS – STATUTES
STATE V. ROBINSON
SEDGWICK DISTRICT COURT – AFFIRMED
No. 116,650 – JANUARY 11, 2019

FACTS: Robinson convicted of capital murder and other crimes.  Life prison term without parole imposed with a 247 additional months.  Convictions and sentence affirmed in direct appeal.  293 Kan. 1002 (2012).  He filed 2015 motion under K.S.A. 60-237 citing Brady v Maryland,373 U.S. 83 (11963) and Giglio v. United States, 405 U.S. 150 (1972), to compel exculpatory discovery of detective who had testified at his trial.  District court denied the motion finding no rule of criminal procedure allowing for such a motion, and the State had asserted there was no such information to produce.  Robinson appealed.

ISSUE: Postconviction Motion

HELD: District court’s decision is affirmed.  Nothing in K.S.A. 2015 Supp. 60-237 permits a postconviction motion to compel discovery in a criminal case.

STATUTES: K.S.A. 2015 Supp. 60-234, -237, -237(a)(1)-(3), -237(a)(3)(B)(iv)

CRIMINAL PROCEDURE – SENTENCES- STATUTES
STATE V. AYERS
WYANDOTTE DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, REMANDED
No. 117,654 – JANUARY 11, 2019

FACTS: Ayers convicted on guilty pleas to multiple felonies related to a murder.  Sentencing court imposed consecutive sentences consecutive to a life sentence without possibility of parole, and assessed BIDS fees.  Ayers appealed claiming the district judge failed to consider on the record Ayers’ ability to pay the assessed BIDS fees.  He also claimed the district judge abused its discretion by ordering most of the on-grid sentences to run consecutively to a life sentence with no possibility of parole.

ISSUES: (1) BIDS. Fees, (2) Sentences

HELD: Pursuant to State v. Robinson, 281 Kan. 538 (2006), the BIDS fee assessment must be vacated and case remanded for reconsideration of that fee.  Court rejects State’s argument that there is no additional fact-finding any court must do to resolve the issue of BIDS fess, and that the BIDS fee assessed was “unworkable” as found in restitution statute. 

No abuse of discretion in district court’s sentencing in this case.  Recognized purposes of sentencing go beyond pure incapacitation, and include retribution for Ayers’ other crimes.  Also, sentencing defendants to terms of imprisonment they are unlikely to serve is common. 

STATUTES: K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2005 Supp. 22-4513, -4513(b)

CONSTITUTIONAL LAW – CRIMINAL PROCEDURE – MOTIONS – STATUTES
STATE V. SAMUEL
WYANDOTTE DISTRICT COURT – AFFIRMED
No. 116,423 – JANUARY 11, 2019

FACTS: Samuel convicted of second-degree murder.  Nineteen years later, citing Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), he filed motion to correct an illegal sentence and claiming his life sentence with mandatory 10-year terms violates the Eighth Amendment because he was 16 years old when he committed the crime.  District court summarily dismissed the motion, holding a motion to correct an illegal sentence was not a proper vehicle to challenge a sentence as unconstitutional.  Samuel appealed. 

ISSUE: Motion to Correct an Illegal Sentence

HELD: District court’s judgment is affirmed.  Samuel’s Eighth Amendment claims do not fit within the definition of an “illegal sentence.”  They do not implicate the sentencing court’s jurisdiction, and a motion to correct an illegal sentence under the statute cannot raise claims that the sentence violates a constitutional provision.

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3601(b)(3)-(4); K.S.A> 22-3504, -3504(1); K.S.A. 1996 Supp. 21-3402(a)

CONSTITUTIONAL LAW – EVIDENCE – FOURTH AMENDMENT – SEARCH AND SEIZURE
STATE V. DOELZ
LEAVENWORTH DISTRICT COURT – REVERSED AND REMANDED; COURT OF APPEALS – REVERSED
No. 113,165 – JANUARY 11, 2019

FACTS: Investigating a recent bank robbery by two black males, officer stopped vehicle in which Doelz was a passenger.  Officer seized a box he observed on the back seat.  When opened, the box contained a digital scale.  Methamphetamine then found in search of the vehicle.  Doelz arrested and convicted on drug charge.  He appealed, claiming district court erred in denying motion to suppress evidence obtained in an unlawful search.  Doelz argued in part:   (1) the investigatory detention was unlawfully extended once officer discovered all in the car were white males; (B) officer unlawfully seized the digital scale without a warrant or a valid exception to the warrant requirement; and (c) officer lacked probable cause to search the whole vehicle.  Court of Appeals affirmed in unpublished opinion. Doelz’s petition for review granted. 

ISSUE: Lawfulness of Vehicle Search

HELD: Under totality of the circumstances which included a report the bank robbery car was driven by a white male, reasonable suspicion for the investigatory detention was not unlawfully extended.  However, the search of the box retrieved from the backseat was unlawful.  Plain-view exception did not permit further search of the box without a warrant or another established exception.  Absent consideration of this alleged drug paraphernalia seized from the vehicle at the time of the stop, the remaining circumstances were insufficient to establish a fair probability the vehicle contained contraband.  District court thus erred in finding the automobile exception to the warrant requirement applied.  Panel’s decision to affirm the district court’s denial of the motion to suppress is reversed.  Matter is reversed and remanded for a new trial. 

STATUTES: K.S.A. 22-2402

Kansas Court of Appeals

Civil

DIVORCE – JUDGMENTS
IN RE MARRIAGE OF STROM
RILEY DISTRICT COURT—AFFIRMED
NO. 118,676—JANUARY 11, 2019 

FACTS: The Stroms married in 1986 and divorced in 1995. At the time of the divorce, Eric was retired from the military and was receiving military retirement benefits. In the property settlement agreement, Eric agreed to give Christina a portion of these retirement benefits. Although the agreement was incorporated into the divorce decree, Eric never made any of the required payments. Almost 22 years later, Eric moved to have the district court declare this division of his military retirement pay a void and unenforceable judgment. He claimed the judgment was dormant because Christina failed to file a renewal affidavit within five years of the divorce and did not revive the judgment within seven years of the divorce. Christina countered by moving to enforce and revive the judgment. The district court agreed with Christina and held that any payment due after September 1, 2010, was revived and enforceable. Eric appealed.

ISSUES: (1) Ability to revive the judgment

HELD: Because Eric and Christina were not married for 10 years, she was unable to file a QDRO and obtain direct payment from the military finance center. The only way the judgment could have been fulfilled was by direct payment from Eric. These payments had to be treated like monthly installment payments. As such, the dormancy period for each individual payment started when it became due and collectable. Christina can now execute on the last five years of judgments and can revive the judgments for the two years preceding that.

DISSENT: (Buser, J.) Christina had an obligation to attempt to enforce her judgment. Because she didn't, the judgment is unenforceable and should be extinguished.

STATUTES: K.S.A. 2017 Supp. 60-2403, -2403(a)(1), -2403(c)

EQUITY – JURISDICTION – WATER RIGHTS
GARETSON BROTHERS V. AMERICAN WARRIOR, INC.
HASKELL DISTRICT COURT – AFFIRMED IN PART, DISMISSED IN PART
NO. 117,404 – JANUARY 11, 2019

FACTS: Garetson Brothers owns water rights in Haskell County. It sought injunctive relief to prevent American Warrior, Inc. – the nearest junior rights holder – from impairing its water right. A referee found that American Warrior was substantially impairing Garetson's senior right and entered a temporary and then a permanent injunction prohibiting American Warrior from exercising its junior water rights. American Warrior appealed.

ISSUES: (1) Subject matter jurisdiction; (2) scope of the notice of appeal; (3) grant of permanent injunction

HELD: The amendments to K.S.A. 82a-716 and -717, which require a party to exhaust administrative remedies before seeking an injunction, did not apply retroactively in this matter. The court has subject matter jurisdiction to hear the merits of this appeal because American Warrior was not required to exhaust administrative remedies. In this civil case, the court only has jurisdiction to consider rulings which were specifically listed in the notice of appeal. The notice of appeal did not contain any "catch-all" language that would permit the court to consider additional rulings. A senior water right is still impaired even if the right holder has permission to pull water from a third party. There is no requirement that economic conditions be considered when determining whether a senior rights holder's usage is impaired. There is no evidence that Garetson had unclean hands in its prior water usage.

STATUTES: K.S.A. 2017 Supp. 60-102, -2103(b), 82a-701(d), -716, -717a; K.S.A. 82a-711(c), -716, -717a, -725

Tags:  8802  Attorney Discipline  Haskell District  Leavenworth District  Riley District  Sedgwick District  Shawnee District  Weekly20190115  Wyandotte District 

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August 17, 2018 Digests

Posted By Administration, Tuesday, August 21, 2018

Kansas Supreme Court

Criminal

criminal procedure—statutes—witnesses
state v. brosseit
franklin district court—affirmed
court of appeals—affirmed
No. 114,753—august 17, 2018

FACTS: Brosseit was convicted of DUI. At trial, State sought endorsement of a person not identified in the complaint as a potential witness—the EMS paramedic (Harris) who drew Brosseit’s blood sample. District court allowed the late endorsement. Brosseit appealed, claiming in part that K.S.A. 22-3201(g) requires the State to endorse all known witnesses when it files the complaint, and only permits endorsement after that time if the State was unaware of the witness when it filed the complaint. State argued this claim was not preserved in district court. Court of appeals affirmed in unpublished opinion without addressing preservation. Review granted on this claim and argument that K.S.A. 22-3201(g) had been wrongly interpreted.

ISSUES: (1) Preservation of issue for appellate review, (2) late endorsement of a witness

HELD:  As in State v. Gray, 306 Kan. 1287 (2017), State failed to cross-petition for review of Court of Appeals conclusion or lack thereof regarding preservation. Nor did the State submit a response to the petition for review. The preservation issue thus is not before the Kansas Supreme Court.

In light of ambiguity in the statute and the legislature’s more than century-long acquiescence, the doctrine of stare decisis is followed. Kansas Supreme Court cases interpreting K.S.A. 22-3201(g) and its predecessors are upheld. To show reversible error on appeal, the defendant must have objected to the late endorsement, requested a continuance, and been denied that continuance. In this case, Brosseit did not request a continuance. Court of appeals is affirmed.

CONCURRENCE (Rosen, J., joined by Johnson and Stegall, JJ.): Concurs in the result only. Does not agree with majority’s interpretation of K.S.A. 22-3201(g). On plain language of the statute, the long-standing interpretation of K.S.A. 22-3201(g) is incorrect. Would hold that if the State wishes to endorse a witness after it has filed its complaint, then the State has a duty to show that it was unaware of the witness at the time of filing. The district court erred in allowing State to endorse Harris on the day of trial, but under facts in the case the error was harmless.

STATUTE: K.S.A. 2013 Supp. 8-1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 22-3201(g)

appeals—criminal procedure—criminal law—evidence—statutes
state v. campbell
sedgwick district court—affirmed
no. 116,430—august 17, 2018

FACTS: Jury convicted Campbell of first-degree premeditated murder of his wife. On appeal, Campbell first claimed the State improperly rehabilitated a jailhouse informant by introducing testimony of former prosecutor (Morehead) regarding past instances when the informant was credible, but State contends defense counsel failed to preserve this argument with an appropriate objection. Second; he claimed district court erred by admitting testimony of a witness who described Campbell as controlling of his wife. Campbell contends this evidence was inadmissible under K.S.A. 2017 Supp. 60-455 because it did not constitute evidence of a “crime or civil wrong,” but State counters this evidence of marital discord was properly admitted through K.S.A. 60-455. Third; he claimed the jury should have been instructed on a heat-of-passion voluntary manslaughter based on Campbell’s sudden quarrel with his wife. And fourth; he claimed cumulative error denied him a fair trial.

ISSUES: (1) Appellate review of Witness Rehabilitation claim, (2) evidence of marital discord, (3) voluntary manslaughter jury instruction, (4) cumulative error

HELD: Campbell objected to Morehead’s testimony on grounds of hearsay and of bolstering or vouching for the informant’s credibility. He now asserts for first time on appeal the more salient objection that Morehead’s proposed testimony would violate the specific instances rule. This newly asserted challenge on appeal is not considered.

District court properly admitted testimony describing Campbell as controlling of his wife. Prior caselaw on marital discord evidence is reviewed, with modification to the holding in State v. Gunby, 282 Kan.39 (2006). Evidence of discord in a marital relationship that does not amount to a crime or civil wrong is not subject to the limitations of K.S.A. 2017 Supp. 60-455. Under facts in this case, the evidence of discord was not subject to K.S.A. 2017 Supp. 60-455. District court’s admission of this evidence is affirmed.

An instruction for heat-of-passion voluntary manslaughter, which would have been legally appropriate, was not factually appropriate in this case.

Cumulative error doctrine not applicable where no error has been found.  

DISSENT (Johnson, J.): Disagrees that the defense objection to Morehead testifying was not preserved for appeal. District court’s error in allowing the testimony was not the result of a misunderstanding as to the reasons the defense objected to the testimony. Would address the issue, find in favor of the defendant, reverse the conviction, and remand for a new trial.

STATUTES: K.S.A. 2017 Supp. 21-5404, 22-3601(b)(3), 60-455; K.S.A. 60-404, -422, -455

 

criminal procedure—probation—sentencing
state v. horton
leavenworth district court—affirmed
court of appeals—affirmed
no. 115,051—august 17, 2018 

FACTS: Horton was convicted of residential burglary and felony theft. At a November 1998 sentencing, probation was ordered with understanding that the first part of probation would be served in jail because Horton had other charges pending. District court granted State’s December 1998 motion to revoke probation based on Horton’s failure to report. In 2015, Horton filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing the district court erred in revoking probation because it was impossible for Horton to report as required when he was incarcerated for other offenses. District court summarily dismissed the motion. Horton appealed. Court of appeals affirmed in unpublished opinion. Horton’s petition for review granted.

ISSUE: Motion to correct an illegal sentence - probation revocation

HELD: The two-step probation revocation process is analogous to the conviction and sentencing process. A probation violator cannot use K.S.A. 22-3504 to collaterally attack the district court’s guilty determination at a probation violation hearing. A revoked probationer must directly attack the factual determination that a probation violation occurred. District court’s summary dismissal of Horton’s claim is affirmed.

STATUTE: K.S.A. 22-3504, -3504(1), -3716, -3716(b)

 

appeals—criminal procedure—evidence—judges
state v. smith
sedgwick district court—reversed and remanded
no. 116,968—august 17, 2018

FACTS: Smith convicted in 1993 of first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. Twenty years later, he filed a pro se motion to file a direct appeal out of time, claiming his defense counsel never acted on Smith’s request to file an appeal. Kansas Supreme Court remanded to district court for an Ortiz  hearing to determine if Smith was eligible to appeal out of time. District court denied the motion, making no findings but referencing Smith’s failure to do anything for all the years. Holding the length of time is a factor but not a threshold bar, Kansas Supreme Court remanded to district court to determine credibility of Smith’s testimony that he repeatedly tried throughout 1993 and 1994 to tell his attorney to file an appeal. State v. Smith, 304 Kan. 916 (2016). Second Ortiz hearing held before a different judge who denied the motion to appeal out of time, finding Smith’s testimony was not credible. Smith appealed, arguing the district court arbitrarily disregarded undisputed testimony that he told his trial counsel he wanted to appeal.

ISSUE: Appearance of judicial bias and prejudice

HELD: Court reviews the district court’s stated reasons for denying the motion and notes the failure to consider the potentially corroborating testimony of Smith’s grandmother. In two stated reasons—Smith’s taste in music and Smith’s tattoos/brands—the district court improperly considered information irrelevant to the credibility determination and applied a negative stereotype. Also, district court inappropriately conducted independent factual research through a post-hearing sua sponte request to department of corrections for Smith’s tattoo/brand information, and failed to provide parties reasonable opportunity to respond before denying Smith’s motion. Reversed and remanded for a new Ortiz hearing before a different judge to consider only evidence in the record that is relevant to Smith’s credibility.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 1993 Supp. 21-4701 et seq.; K.S.A. 60-401(b), 409, -409(b)(4), -410, -410(a), -412(d)

Kansas Court of Appeals

 

Civil

DEBTOR AND CREDITOR—EQUITY—SUCCESSION
WELLS FARGO VENDOR FINANCIAL SERVICES V. NATIONWIDE LEARNING
WYANDOTTE DISTRICT COURT—AFFIRMED IN PART—REVERSED IN PART
NO. 118,334—AUGUST 17, 2018

FACTS: Nationwide Learning, Inc. created kits for teachers and students that allowed for publication of books which contained student-created content. At the time it was incorporated, Nationwide borrowed almost $5 million from C3 Capital Partners. As the business evolved, Wells Fargo obtained lease agreements on three printers. C3 ultimately foreclosed on Nationwide's assets and conveyed them to Studentreasures. Wells Fargo repossessed its collateral and sold the printers. It then sued Nationwide, which was defunct, for breaching the printer lease agreement. Wells Fargo also sued Studentreasures for both actual and punitive damages on theories of successor liability and violation of the Kansas Uniform Fraudulent Transfer Act. The district court awarded Wells Fargo in excess of $490,000 in damages and attorney fees but denied all other claims. Wells Fargo appealed.

ISSUES: (1) Successor liability; (2) application of fraudulent avoidance of debt exception; (3) liability under KUFTA; (4) punitive damages

HELD: Kansas generally recognizes the general rule of successor nonliability, with four exceptions. Successor liability is applied sparingly and must only be used when required by equity. In this case, the district court made errors of law when evaluating certain tests. Because Studentreasures is a mere continuation of Nationwide, the imposition of successor liability is warranted. To apply the fraudulent avoidance of debt exception to successor liability, Wells Fargo must prove, by clear and convincing evidence, actual fraud. That proof did not exist in this case. Because no assets were transferred, the KUFTA cannot apply. In the absence of willful or wanton conduct, the district court correctly denied the motion for punitive damages.

STATUTES: K.S.A. 2017 Supp. 84-1-103(b), 84-9-617; K.S.A. 33-201(1), -201(b)(1), -201(h), -203(b), -204(a)(1), -204(b), 60-3702(c)

Tags:  8/17/2018  Franklin District  Leavenworth District  Sedgwick District  Wyandotte District 

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April 28, 2017 Digests

Posted By Administration, Tuesday, May 2, 2017
Updated: Monday, September 10, 2018

Kansas Supreme Court

CRIMINAL

criminal law—evidence—venue
state v. chapman
barton district court—affirmed
no. 113,962—april 28, 2017

FACTS: Jury convicted Chapman of first-degree murder. On appeal he claimed district court erred by denying Chapman’s repeated requests for change of venue due to pretrial publicity including publicity generated about a defense request to remove or cover a provocative tattoo, and Chapman’s family. He also claimed trial court erred by permitting State to cross examine him about a text message that was hearsay and unduly prejudicial.

ISSUES: (1) Venue, (2) hearsay evidence

HELD: Factors to be considered when determining whether a change of venue is necessary are stated and applied to facts of case, finding a few could favor a change of venue but balance of all factors does not. No abuse of district court’s discretion in denying Chapman’s requests for change of venue.

Any error in the admission of the text message was harmless on the facts and record of this case. No reasonable probability the prosecutor’s question about the text message affected the trial’s outcome.  

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3), 60-261, -460(i)(2); K.S.A. 22-2616(1)

 

criminal law—evidence—jury instructions
state v. stewart
johnson district court—affirmed
no. 111,995—April 28, 2017

FACTS: Stewart was convicted of offenses including felony murder and aggravated robbery.  Relevant to issues raised on appeal, the trial judge adopted the pretrial judge’s rejection of Stewart’s request for a Frye hearing about blood spatter evidence, and denied Stewart’s renewed motion for a hearing; reviewed competing evaluations of Stewart’s mental competency and found Stewart competent to stand trial; and used PIK Crim. 3rd 56.02-A to instruct jury on State’s alternative theories of first-degree murder—premeditated murder and felony murder. On appeal Stewart claimed: (1) district court erred in instructing jury to consider lesser included offenses for both alternative theories of first-degree murder, despite felony murder having no lesser included offenses; (2) district court failed to instruct jury that the justified force in the self-defense jury instruction could not satisfy the taking-by-force element of aggravated robbery; (3) district court should have found him incompetent to stand trial based on evidence of low IQ and corresponding impaired cognitive function; (4) error to admit blood spatter evidence over Stewart’s objection based on Frye; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Jury instructions—alternative theories of first-degree murder, (2) jury instruction on force, (3) competency to stand trial, (4) blood spatter evidence, (5) cumulative error

HELD: District court appropriately instructed jury to simultaneously consider both alternative theories of proving first-degree murder, and upon finding Stewart guilty on either or both theories, to sign the verdict form, ending deliberations without consideration to any lesser included homicide offenses.

In response to jury question about what constituted force for aggravated robbery, Stewart failed to dispel any purported confusion about force. If any instructional error, defense’s unequivocal affirmative assertion that the instruction packet contained all the instructions Stewart wanted precludes first-time-on-appeal argument that jury instructions were clearly erroneous.

District court’s finding that Stewart was competent to stand trial is affirmed. District court acted well within its discretion by relying on opinions of State’s experts, after carefully weighing conflicting evidence.

Any abuse of trial court’s discretion in failing to independently consider the merits of Stewart’s Frye objection is harmless on the record in this case.

Cumulative effect of one possible error by trial court in not ruling on merits of Stewart’s Frye objection, and of one instructional error invited by defense, did not substantially prejudice Stewart and deny him a fair trial.      

STATUTES: K.S.A. 2015 Supp. 21-5402(d), -5402(e), 22-3601(b)(3)-(4); K.S.A. 21-3426, -3427, 22-3219, -3301(1), -3303(1), -3302(1), -3414(3), 60-404

 

Kansas Court of Appeals

CIVIL

DISCOVERY—HABEAS CORPUS
WHITE V. SHIPMAN
LEAVENWORTH DISTRICT COURT—AFFIRMED
NO. 116,232—APRIL 28, 2017

FACTS: White filed a K.S.A. 60-1501 petition after Department of Corrections staff withheld from White two magazines and a book; DOC staff informed White that the content was either a safety threat or too sexually explicit. White challenged the seizure of this material as a First Amendment violation and also claimed the DOC regulations were unconstitutionally vague and overbroad. White filed requests for discovery with DOC. The request was met with objection from DOC, which claimed that the materials requested by White created safety concerns. The district court ruled that the full array of discovery was not available in a K.S.A. 60-1501 proceeding and denied White's request. White's K.S.A. 60-1501 petition was denied after an evidentiary hearing, and he appealed.

ISSUES: (1) Do the rules of discovery apply to a K.S.A. 60-1501 proceeding, (2) was White entitled to an evidentiary hearing

HELD: K.S.A. 60-1501 proceedings are not subject to the ordinary rules of civil procedure. This includes the rules of discovery. The heightened pleading requirements for K.S.A. 60-1501 petitions almost always make discovery unnecessary. And even if White was entitled to discovery, none of the requested discovery was relevant to this action. White arguably received two evidentiary hearings before the district court. White chose to use that opportunity to continue to argue his request for discovery, but that was a strategic choice on his part.

STATUTES: K.S.A. 2016 Supp. 60-201(b), -226(b), -265, -267, -1503(a), -1505(a); K.S.A. 60-1501, -1507

 

CRIMINAL

criminal law—sentences—statutes
state v. carter
sedgwick district court—affirmed
no. 114,556—april 28, 2017

FACTS: Jury found Carter guilty of aggravated battery in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A), and also found the crime was an act of domestic violence. On appeal, Carter claimed clear error by trial court in failing to instruct jury on domestic battery as a lesser included offense of aggravated battery. He also claimed district court unconstitutionally considered Carter’s criminal history to enhance the sentence.

ISSUES: (1) Lesser included offenses of aggravated burglary, (2) sentencing

HELD: Domestic battery, K.S.A. 2015 Supp. 21-5414(a)(1), is not a lesser included offense of aggravated battery, K.S.A. 2015 Supp. 21-5413(b)(1)(A). Trial court did not err in failing to instruct jury on crime of domestic battery as a lesser included offense. Panel examines cases cited by Carter, and expressly disagrees with the conclusion in State v. Howard, No. 102738 (Kan.App. 2011)(unpublished).

Controlling Kansas precedent defeats Carter’s Apprendi sentencing claim.

STATUTE: K.S.A. 2015 Supp. 21-5109(b), -5413(a)(1), -5413(b)(1)(A)-(B), -5413(g)(2)(B)-(D), -5414(a), 22-3414(3), -4616

 

constitutional law—criminal law—sentences
state v. fahnert
johnson district court—sentence vacated and case remanded with directions
no. 115,058—april 28, 2017

FACTS: District court classified Fahnert’s prior Missouri burglary conviction as a person felony for purposes of scoring his criminal history. Fahnert appealed.

ISSUE: Classification of Prior Out-of-State Conviction

HELD: Court reviewed constitutional protections in Mathis v. United States, 579 U.S. __ (2016), Descamps v United States, 570 U.S. __ (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), as applied in State v. Dickey,  301 Kan. 1018 (2015). K.S.A. 2016 Supp. 21-6811(e) governs classification of a prior conviction as a person or nonperson offense for purposes of scoring criminal history when the prior offense qualifies as both an out-of-state conviction and as a prior burglary conviction. Under facts in this case, district court was constitutionally prohibited from classifying Fahnert’s prior burglary conviction as a person felony because doing so necessitated making or adopting a factual finding that the prior burglary involved a dwelling. This went beyond simply identifying the statutory elements of the prior burglary conviction. Under Dickey, Fahnert’s Missouri burglary conviction should have been classified as a nonperson felony. Sentence is vacated and case remanded for resentencing. Conflict noted between this decision and State v. Sodders, No. 115,366 (Kan.App. 2017)(unpublished), petition for review filed March 3, 2017.

STATUTES: K.S.A. 2016 Supp. 21-5111(k), -5807, -6811 et seq., -6811(d), -6811(e); K.S.A. 2014 Supp. 21-5807; K.S.A. 21-3715(a), -4711(d), -4711(e)

criminal law—sentences
state v. mcalister
Finney District Court—sentence vacated and case remanded with directions
no. 115,887—april 28, 2017

FACTS: McAllister’s convictions and sentences for 1996 offenses were affirmed on appeal. In 2015, he filed motions to correct his illegal sentences. Citing State v. Dickey, 301 Kan. 1018 (2015), he claimed the 1992 Missouri burglary-related convictions in his criminal history should have been scored as nonperson felonies. District court denied the motions as procedurally barred by res judicata, and because holding in Dickey did not apply retroactively to McAlister’s sentences. McAlister appealed. State did not preserve res judicata argument on appeal, but argued McAlister was not entitled to retroactive relief under Dickey because unlike Dickey, McAlister’s sentences became final prior to Apprendi.

ISSUE: Motion to correct illegal sentence

HELD: Holding in Dickey was reviewed, as clarified by State v. Dickey, 305 Kan. 217 (2016)(Dickey II). The proper classification of a prior crime as a person or nonperson felony for criminal history purposes is a question of state statutory law, not constitutional law. Accordingly, a defendant whose sentence is illegal based on holding in State v. Dickey, 301 Kan. 1018 (2015), is entitled to receive a corrected sentence at any time, even if the sentence became final prior to Apprendi. District court erred in finding McAlister’s motions to correct his illegal sentences were procedurally barred. Remanded for resentencing based on the correct criminal history score.

CONCURRENCE (Gardner, J.): Concurs in the result because panel is bound by holding in Dickey II, but does not read Dickey II as broadly as the majority, and does not believe the “at any time” language in K.S.A. 22-3504 means an illegal sentence can be corrected in any manner under any circumstances, or repeatedly litigated.

STATUTES: K.S.A. 2016 Supp. 21-6811(d); K.S.A. 2014 Supp. 21-5807(a)(1), -6811(d); K.S.A. 21-3715(a), 22-3501(1), -3504(1), -3628(c), 60-1501(b), -1507(f)(1); K.S.A. 1991 Supp. 21-3715

Tags:  Barton District  Finney District  Johnson District  Leavenworth District  Sedgwick District 

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January 8, 2016, Appellate Court Digests

Posted By Administration, Friday, January 8, 2016
Updated: Monday, September 10, 2018

Kansas Supreme Court

Criminal

State v. Hurley
Saline district court – reversed and remanded; court of appeals – reversed
No. 108,735 – January 8, 2016

FACTS: At revocation hearing, Hurley stipulated to allegations he violated terms of probation in three cases. District court reinstated probation on same terms and conditions, and ordered 90-day jail sanction (30 days in each case). When Hurley responded with query about going to prison instead, district court denied Hurley’s request to serve 90-day sanction on weekends, and requests for a different intension supervision officer (ISO). During prosecutor’s attempt to clarify start date of jail sanction and probation extension, ISO interrupted to tell court that Hurley had just made a disparaging comment to him. District court entered a finding of contempt, reopened the matter of whether probation should be reinstated with 90-day jail sanction, and remanded Hurley to prison. On appeal Hurley claimed district court (1) lacked jurisdiction to reopen the probation revocation hearing after pronouncing its disposition, and (2) violated his due process rights by summarily revoking newly imposed probation without hearing based upon newly alleged probation violation of contempt. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Revocation of Probation

HELD: District court revoked Hurley’s probation based upon a ground for which Hurley was not provided sufficient notice and opportunity to be heard. Reversed and remanded to district court for new probation revocation hearing that comports with statutory and constitutional requirements.

STATUTES: K.S.A. 2011 Supp. 22-3716, -3716(b); K.S.A. 20-1203

State v. Michael R. Williams
Sedgwick District Court – Affirmed
No. 109,353 – January 8, 2016

FACTS: In 2010, Michael R. Williams lived in the same house with Deborah Weiss—whom Williams described as his common-law wife—and with Sean Putnam. On the evening of December 21, Williams called the police in an attempt to have Putnam evicted from the home, but the police refused. Later that evening, Williams shot Putnam in the head, killing him. A few days after that, Williams buried Putnam's body in a shallow grave. A jury convicted Williams of first-degree premeditated murder. The district court imposed a hard 25 sentence.

ISSUES: (1) Evidence, (2) motion for new trial, (3) lesser included offense instruction, (4) prosecutorial misconduct, and (5) cumulative error

HELD: First, Court held the record lacked any evidence establishing a nexus between the alleged prior bad act of the victim—Putnam in this case—and the defendant's state of mind at the time the defendant claims to have acted in self-defense, or defense of another concerning the victim's attempted rape of the witness. In these circumstances, the prior bad act of the victim is not relevant to a material fact and is not admissible. Second, Court held the trial court made a similar ruling regarding evidence of another rape by the victim. Court stated that Williams became aware of the rape victim's statements at some point, but nothing in the record indicated he was aware of them at the time of the shooting. Next, Court held this is exactly the kind of case to which the skip rule for lesser-included offenses reasonably applies. The jury convicted Williams of premeditated first-degree murder when it had the option to convict of intentional second-degree murder. Such circumstances necessarily show that the jury would have rejected the still lesser culpable mental state required for a conviction of voluntary manslaughter. There was no reasonable possibility the error affected the outcome. Next, Court held the prosecutor's colloquial use of "story" to refer to a defendant's testimony does not by itself imply either truth or fiction and does not constitute prosecutorial misconduct. Last, Court found no error to cumulate.

STATUTES: K.S.A. 21-3211; K.S.A. 22-3501, -3601(b)(3); K.S.A. 60-401, -447

State v. Tarlene A. Williams
Wyandotte District Court – Affirmed
No. 112,417 – January 8, 2016

FACTS: Tarlene A. Williams has previously filed unsuccessful motions to withdraw her 2008 no contest plea to a first-degree murder charge. In this instance, she argues the district court erred in holding her latest motion failed to demonstrate excusable neglect as required by K.S.A. 22-3210(e)(2). She concedes this motion is successive to others she has filed and lost.

ISSUES: (1) Habeas, (2) successive motions, (3) excusable neglect

HELD: Court stated that under K.S.A. 22-3210(e)(1), a motion to withdraw a plea must be brought within 1 year of: (a) the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (b) the denial of a petition for a writ of certiorari to the United States Supreme Court or issuance of such Court's final order following the grant of such petition. But these time limitations can be extended upon an additional, affirmative showing of excusable neglect by the defendant under K.S.A. 22-3210(e)(2). Court held Williams failed to demonstrate excusable neglect.

STATUTES: K.S.A. 22-3210, -3601; K.S.A. 60-1507

Kansas Court of Appeals

Criminal

State v. Gauger
Leavenworth district court – affirmed
No. 112,913 – January 8, 2016

FACTS: Gauger charged his purchase of goods from auto parts store to former employer’s store account without authorization. Prior to opening statements, district court’s instruction to jury included statement regarding cost and burden of mistrial if there was jury misconduct. During trial, district court allowed State to introduce printed copies of auto store’s electronically stored receipts and invoice. On appeal Gauger claimed: (1) admission of these exhibits violated best evidence rule, and (2) district court’s preliminary instruction denied Gauger a fair trial.

ISSUES: (1) Best Evidence Rule – Electronically Stored Documents, (2) Preliminary Jury Instruction

HELD: Best evidence rule is stated and applied to electronically stored information. Analysis of issue of first impression in State v. Robinson, 303 Kan. __ (2015), regarding admission of printed version of email communication, equally applies in this case. Under that rule, a printed version of an electronically stored document may be admitted as the original, provided there is no genuine dispute regarding authenticity. Here, copies of auto store’s electronically stored receipts and a monthly invoice were properly admitted as originals.

Clear error test applies to appellate review of instructional errors in district court’s preliminary instructions. Instruction at issue in this case, as in State v. Tahah, 302 Kan. 783 (2015), was given as warning to jurors against committing misconduct, and was legally and factually appropriate.

STATUTES: K.S.A. 2014 Supp. 22-3414(3); K.S.A. 60-467

Tags:  Leavenworth District  Saline District  Sedgwick District  Wyandotte District 

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