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February 7, 2020 Digests

Posted By Administration, Monday, February 10, 2020

Kansas Court of Appeals

Civil

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

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

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

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

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

 

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

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

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

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

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

 

criminal 

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

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

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

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

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

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

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

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

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

ISSUE: (1) Withdrawal of guilty plea after sentencing

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

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

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

 

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

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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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