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July 19, 2019 Digests

Posted By Administration, Tuesday, July 23, 2019

Kansas Supreme Court

CIVIL

CONTEMPT
IN RE PATERNITY OF S.M.J. V. OGLE
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 115,776—JULY 19, 2019

FACTS: Ogle and Jacobs were involved in a paternity and custody proceeding. It turned contentious, enough that the district court ordered Ogle to cease widespread slander of Jacobs. Ogle did not stop, and Jacobs moved the court to hold him in indirect contempt after his comments caused her to lose her job. The district court held Ogle in indirect contempt, even though neither Ogle nor his attorney appeared at the contempt hearing. Ogle appealed and the court of appeals vacated the contempt finding, holding that the district court could not hold Ogle in indirect contempt when he did not appear at the hearing. Jacobs' petition for review was granted.

ISSUE: (1) Necessity of personal appearance at the hearing

HELD: K.S.A. 2018 Supp. 20-1204a does not specifically mention whether an accused must appear at the hearing. But after reading all of the statute's provisions together, it is clear that a district court judge is allowed to proceed with a contempt hearing once the person accused is present, but not before.

STATUTE: K.S.A. 2018 Supp. 20-1204a

criminal 

criminal law—criminal procedure—jury instructions—motions—statutes
state v. cottrell
sedgwick district court—affirmed
court of appeals—affirmed
no. 114,635 —july 19, 2019

FACTS: Undercover officer (Padron) obtained hydrocodone and oxycodone from Cottrell, through sale set up by his daughter. Jury convicted Cottrell of distributing a controlled substance and conspiring to distribute a controlled substance. On appeal, Cottrell claimed: (1) district court erred in failing to give a unanimity instruction because State alleged multiple overt acts in furtherance of the conspiracy; (2) alternatively, the overt acts alleged were alternative means to commit the crime of conspiracy, and State failed to produce sufficient evidence to support each one; (3) district court erred in instructing jury that “knowingly” was the culpable mental state for distribution of a controlled substance; and (4) district court erred in denying Cottrell’s motion for judgment of acquittal because insufficient evidence supported the charges. Court of appeals affirmed. 53 Kan. App. 2d 425 (2017). Review granted.

ISSUES: (1) Unanimity instruction—multiple acts; (2) alternative means—crime of conspiracy; (3) jury instruction; (4) motion for acquittal

HELD: No unanimity instruction was required because alleging several overt acts in furtherance of one conspiracy does not present a multiple acts case. State presented arguments and evidence about one agreement between Cottrell and his daughter: to illegally sell hydrocodone and oxycodone to Padron.

Jury instruction that lists several overt acts in furtherance of a conspiracy does not create alternative means for the crime of conspiracy.

Following State v. Brown, 295 Kan. 181 (2012), only language of a statute can create alternative means for a crime, and the conspiracy statute does not do so. State v. Enriquez, 46 Kan. App. 2d 765 (2011), is overruled. A jury instruction listing more than one overt act in furtherance of a conspiracy does not create alternative means. Instead, such an instruction merely describes the factual scenarios that could prove the material element of an overt act.

Invited error precludes reaching the merits of Cottrell’s jury instruction challenge. Cottrell actively pursued an instruction for distribution of a controlled substance that included a knowing culpable mental state, was unwavering in this request, and any error was as obvious before trial as after. Defense counsel also stated on the record that he did not object to the final instruction.

No error in district court’s denial of the motion for acquittal. No appellate reweighing of Cottrell’s testimony, and significant evidence supported Cottrell’s knowledge that he was distributing controlled substances

STATUTES: K.S.A. 2018 Supp. 21-5302(a), -5402(c); K.S.A. 2912 Supp. 21-5302(a)

constitutional law—criminal law—jurisdiction
motions—securities—statutes
state v. lundberg
sedgwick district court—affirmed
court of appeals—reversed
no. 114,897—july 19, 2019

FACTS: Minnesota residents Lundberg and Elzufon, formed a Minnesota corporation they registered to do business in Kansas to develop properties in downtown Wichita. As principals for four Kansas limited liability corporations (LLCs), they sold securities by using intermediaries who resided in California who made sales presentations in California and sold the securities from California to individuals who did not reside in Kansas.  State filed criminal charges under the Kansas Uniform Securities Act (KUSA) against Lundberg and Elzufon for selling or offering to sell unregistered securities and committing fraud in selling or offering to sell securities. Lundberg and Elzufon filed motions to dismiss for lack of jurisdiction, arguing neither the offers to sell, the sales, the offers to purchase, nor the purchases were made or accepted in Kansas. Parties stipulated to the facts for deciding this motion. District court dismissed 56 of the counts related to sales involving the California intermediaries, rejecting State’s argument that any of the offers originated within Kansas. State voluntarily dismissed remaining charges and appealed. Court of Appeals reversed. 53 Kan.App.2d 721 (2017). Lundberg’s and Elzufon’s petitions for review granted.

ISSUE: (1) Jurisdiction for criminal charges - KUSA

HELD: KUSA is interpreted, examining “sale,” “offer to sell,” and whether “multiple sales” were consummated in Kansas. Nexus analysis applied by Court of Appeals is rejected. Even under expansive reading permitted by definition of “offer to sell” in KUSA, Kansas’ jurisdiction is statutorily limited to situations in which the offer originates within the territorial boundaries of Kansas—not just because the transaction has some sort of “nexus” to the state. On facts in this case the sales were not made in Kansas nor did the offers to sell originate in Kansas, thus no jurisdiction exists based on a sale occurring in Kansas.  

CONCURRENCE (Vano, D.Judge assigned): There is no stipulated fact regarding the place where any offer to sell originated, and the word “nexus” appears nowhere in the KUSA. The jurisdictional statute, K.S.A. 17-12a610, limits criminal sanction to sales or offers to sell originating within the state. On the stipulated facts in this case, the offers did not occur or originate in Kansas.  Dissent goes too far in adding a penal reach that is not expressed by the Legislature and is inconsistent with Kansas precedent on reading, construing, and applying criminal statutes and sanctions strictly in favor of the accused, and keeping the court out of the business of drafting legislation—particularly penal sanctions.

DISSENT (Luckert, J.) (joined by Beier and Rosen, JJ.): Would interpret the offers as originating with and the sales being made by the Kansas LLCs acting through their officers and shareholders—Lundberg and Elzufon—to retain California intermediaries who extended the Kansas LLCs’ offers to California investors. These acts are sufficient to say the sales or offers to sell originated in Kansas. Thus application of Kansas law and jurisdiction is proper, and applying KUSA here does not violate any federal constitutional restriction against extraterritorial application of Kansas law.   

STATUTES: K.S.A. 2019 Supp. 17-12a302, -12a303, -12a508(a)(2), -12a508(a)(3), -7662 et seq., -7663(1), -7668, 21-5106; K.S.A.17-12a101 et seq., -12a102, -12a102(17), -12a102(26), -12a310, -12a304, -12a501, -12a501(2), -12a501(3), -12a508, -12a610, -12a610(a), -12a610(b), -12a610(c), -12a610(e), 60-2101(b)

appellate procedurecriminal lawstatutes
state v. Rizal
johnson district court—affirmed; court of appeals—affirmed
no. 115,036 —july 19, 2019

FACTS: In bench trial on stipulated facts, Rizal convicted of possessing a controlled substance —naphthoylindole (“K2”), a synthetic cannabinoid — with intent to distribute it at gas station she owned. Rizal appealed, claiming in part that insufficient evidence supported the conviction because State only proved she knowingly sold what she thought was “incense,” and not that  she possessed K2 with “knowledge” as defined in McFadden v. United States, 576 U.S. __ (2015). Court of Appeals affirmed in unpublished opinion, distinguishing McFadden from the Kansas statute, but also finding substantial competent evidence if McFadden applied. Review granted. In supplemental brief Rizal argued new claim that that the substance she possessed was not a controlled substance, but a controlled substance analog, based on her lay analysis of chemical compounds in packets sold.

ISSUES: (1) New claim on appeal; (2) knowledge of nature of the controlled substance; (3) sufficiency of the evidence

HELD: Rizal’s new analog argument is unpreserved and not reviewed. Undisputed fact in the record that Rizal possessed the controlled substance naphthoylindole.

Court examines what it means to “knowingly” exercise control over a controlled substance, finding Court of Appeals erred in its interpretation of K.S.A. 2011 Supp. 21-5705(a)’s knowledge requirement. To convict a defendant of possession with intent to distribute a controlled substance under K.S.A. 2011 Supp. 21-5705(a), State must prove the defendant had knowledge of the nature of the controlled substance. This knowledge requirement can be established by proving the defendant either knew the identity of the substance or knew that the substance was controlled. A mistake of fact about the nature of a controlled substance can negate the knowledge requirement.

Under facts in this case, Rizal’s conviction is affirmed because State presented sufficient evidence that Rizal knew the substance was controlled.

STATUTES: K.S.A. 2018 Supp. 21-5207(a); K.S.A. 2014 Supp. 60-455(b); K.S.A. 2011 Supp. 21-5202(i), -5701(a), -5701(q), -5705(a), -5705(a)(7), -5705(c)(1)(A), 65-4101(bb)(1), -4101(bb)(2), -4105(h)(2); K.S.A. 60-455

appellate procedure—criminal procedure
evidence—jury instructions—prosecutors
state v. ross
sedgwick district court—affirmed
no. 117,850—july 19, 2019

FACTS: Ross convicted of felony murder and second-degree murder as a lesser included offense of premeditated murder, and felony abuse of a child. On appeal he claimed: (1) State committed prosecutorial error during rebuttal closing argument by stating the jury must find the defendant guilty if it did not believe the defendant’s testimony; (2) district court violated Ross’ statutory right to lesser included offense instructions by not offering an instruction on unintentional but reckless second-degree murder as a lesser included offense of premeditated murder; (3) district court erred in admitting into evidence two recorded jail phone calls between Ross and his mother; (4) pro se additional issues claiming the jury’s verdict operated as a de facto acquittal on the charge of first-degree felony murder, and claiming K.S.A. 2018 Supp. 21-5109(b)(1) infringed his right to present a complete defense; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) jury instruction; (3) admission of phone call evidence; (4) supplemental issues raised pro se; (5) cumulative error

HELD: Prosecutor’s misstatement was error, but in context of prosecutor’s surrounding comments did not effectively shift burden of proof. No reversible error shown.

An instruction on reckless second-degree murder was legally appropriate, but whether it was factually appropriate is immaterial because any error in failing to offer the instruction was harmless. On evidence in the case, no reasonable probability that jury could have inferred the killing of the child victim was done unintentionally but recklessly.

No error in admitting the two phone calls. Probative value of the calls far outweighed the resulting prejudice.

Ross’ newly raised arguments were insufficiently preserved for appellate review.

Aggregated effect of prosecutor’s misstatement which did not prejudice Ross’ right to a fair trial, and assumed instructional error which was harmless, did not constitute reversible error.             

STATUTES: K.S.A. 2018 Supp. 21-5108, -5109(b)(1), -5403(a)(2); K.

 

Kansas Court of Appeals

CIVIL

DUE PROCESS—PARENTAL RIGHTS
IN RE J.L.
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,504—JULY 19, 2019

FACTS: In April 2018 the State sought to have J.L. declared to be a child in need of care. Later that year, the State scheduled a pretrial conference hearing. Notice was mailed, but Father's address was listed as "unknown." Father's attorney appeared at that pretrial conference hearing, but Father was not in the room when the hearing started. Because of his absence, the State moved for a default judgment on the CINC petition. Father appeared within 10 minutes of the start of the hearing and moved to set aside the default judgment. Father appealed.

ISSUE: (1) Due process violation

HELD: Father has a fundamental liberty interest in parenting his child. Finding J.L. to be a CINC opens Father up to further intervention and potential liberty deprivations. To protect against undue deprivations, the State is required to prove the need for adjudication by clear and convincing evidence. It is uncertain that any portion of the default judgment statute can apply to proceedings held under the juvenile code. Further, Father was never told that a CINC adjudication would occur at the pretrial conference hearing. Even the State did not anticipate the finding and there were no witnesses available. Nothing about the default judgment advanced the State's interests or J.L.'s wellbeing; this was about the district court's annoyance. The default judgment is reversed and the case is remanded for further proceedings.

STATUTE: K.S.A. 2018 Supp. 38-2239, -2248(e), -2250, -2251(a), 60-255, -255(a)

GRIEVANCE—HABEAS CORPUS
PETERSON V. SCHNURR
RENO DISTRICT COURT—AFFIRMED
NO. 119,869—JULY 19, 2019

FACTS: Peterson is an inmate who subscribed to a newspaper. The correctional facility seized two issues of the paper, claiming that they had content which was a threat to the facility's safety. Peterson appealed the seizure and the decision was upheld by the Secretary of Corrections' designee. Peterson then filed an inmate grievance claiming he was subject to improper censorship. That grievance was denied. Peterson followed up by filing a K.S.A. 60-1501 petition, arguing that the Department of Corrections was not properly applying its own regulations regarding censorship. The district court denied the petition as untimely, and Peterson appealed.

ISSUE: (1) Timeliness of petition

HELD: Peterson's use of the facility grievance procedure was not part of his administrative remedies and did not toll the time in which to file his 60-1501 petition. Because the time limit was not tolled, the district court properly dismissed Peterson's petition as untimely.

STATUTES: K.S.A. 2017 Supp. 60-1501, -1501(b); K.S.A. 75-52,138

Tags:  8807  Johnson District  Reno District  Sedgwick District  Shawnee District 

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June 28, 2019 Digests

Posted By Administration, Monday, July 1, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF SUSPENSION
IN RE GREGORY V. BLUME
NO. 119,027
JUNE 28, 2019

FACTS: A hearing panel determined that Blume violated KRPC 3.1 (meritorious claims and contentions); 3.3(a)(1) (candor toward tribunal); 3.4(d) (compliance with discovery request); 4.4(a) (respect for rights of third persons); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice). One incident involved an allegedly inadequate response to a discovery request, two involved rude words and gestures directed at a deposition witness, and one arose out of a motion to set aside an earlier agreed judgment. Blume's actions regarding discovery resulted in the dismissal of his client's case, after the district court found that Blume's conduct was calculated and intentional.

HEARING PANEL: The hearing panel found adequate evidence to support all of the complaints levied against Blume. When considering aggravating factors, the panel noted that Blume's conduct was motivated by dishonesty and was part of a pattern of failing to show respect for other people. The disciplinary administrator recommended a one-year suspension. Blume asked for a one-year suspension but asked that it be suspended while he served a probationary term. However, the panel found that Blume's probation plan was wholly inadequate and that his misconduct could not be corrected by probation. The hearing panel agreed with the disciplinary administrator and recommended discipline of a one-year suspension.

HELD: Blume filed numerous exceptions to the hearing panel's report. Most of the exceptions were not supported by evidence that was considered by the hearing panel. At the hearing before the court, Blume explained that he planned to retire within six months. He asked that discipline be limited to a requirement that he apologize to the deposition witness. The court found Blume's objections to the findings of fact incoherent and inconsistent, and all of the hearing panel's findings of fact and conclusions of law were adopted. The court found that Blume failed to understand the nature of his mistakes and did not acknowledge the seriousness of his misconduct. Because of the serious nature of his misconduct and his failure to take responsibility, the court determined that a severe sanction was warranted. It imposed an indefinite suspension from the practice of law.

CIVIL

CITY ORDINANCEHOME RULE
DWAGFYS MANUFACTURING, INC. V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT
REVERSED
NO. 119,269
JUNE 28, 2019

FACTS: The City of Topeka passed Ordinance 20099, which made it unlawful to sell cigarettes to persons under age 21, and persons under age 21 were forbidden to buy tobacco. Prior to the ordinance taking effect, a store sued the City of Topeka seeking to prevent enforcement of the ordinance as unconstitutional under the Kansas Constitution. The district court agreed, finding conflicts between the ordinance and state law. The district court both temporarily and permanently enjoined enforcement of the ordinance. The City appealed, and the case was transferred to the Supreme Court.

ISSUE: (1) Statutory preemption

HELD: There is overlap between the ordinance and state statute regarding the subject matter, and the state statute is a uniform law applicable to all cities. But the Kansas Cigarette and Tobacco Products Act does not contain an express statement of preemption, and the act's "comprehensive scheme" of regulation is inadequate to show an intent to preempt city action. There is also no conflict between the language of the act and the ordinance. The act does not expressly authorize the sale or purchase of tobacco products to those ages 18-20. The ordinance is a constitutional exercise of the city's home rule power, and the district court is reversed.

STATUTE: Kansas Constitution, Article 12, §5(b), §5(d)

criminal 

attorney and client—criminal procedure—motions
state v. bacon
sedgwick district court—affirmed; court of appeals—affirmed
no. 114,951—june 28, 2019

FACTS: Bacon was charged with aggravated human trafficking. After appointed public defender continued the preliminary hearing seven times, Bacon filed pro se “Motion for Diligence” with copy of KRPC 1.3. No action taken on this and subsequent similar motions. Appointed counsel continued the preliminary hearing three more times, and continued trial three times. Bacon then retained private counsel. State amended the complaint and jury found Bacon guilty of commercial sexual exploitation of a child. Motion for new trial filed, based in part on district court’s failure to inquire into Bacon’s pro se motions voicing dissatisfaction with appointed counsel. Bacon appealed the district court’s denial of that motion. Court of appeals affirmed the conviction, finding in part the pro se motions did not allege dissatisfaction with appointed counsel. Review granted on this issue.

ISSUE: District court’s duty to Inquire 

HELD: It is assumed without deciding that Bacon’s pro se motions were sufficient to trigger the district court’s duty to inquire into a potential conflict with his trial attorney, but on facts in case, remand to district court is unnecessary because Bacon retained a new attorney for trial; he does not claim his trial attorney was ineffective; and he does not otherwise identify any prejudice flowing from district court’s failure to inquire.

STATUTE: K.S.A. 2014 Supp. 21-5426(b)(4), -6422(a)(4)

criminal procedure—motions—sentences—statuites
state v. dubry
shawnee district court—affirmed
court of appeals—affirmed
no. 114,050—june 28, 2019

FACTS: Dubry was convicted of kidnapping. Years later he moved to correct his 2011 sentence, arguing the sentencing court improperly scored a prior Wyoming conviction as a person crime. District court denied the motion. Dubry appealed, arguing the Wyoming statute is broader than the counterpart Kansas offense. Court of appeals affirmed in unpublished opinion. Dubry’s petition for review granted, and parties were ordered to explain whether panel’s decision should be summarily vacated and case remanded to district court in light of State v. Wetrich, 307 Kan. 552 (2018). Dubry argues Wetrich should apply.

ISSUE: Classification of out-of-state crime

HELD: Affirmed based on State v. Murdock, 309 Kan. 585 (2019)(Murdock II). Legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Thus a sentence that was legal when pronounced does not become illegal if the law subsequently changes. Since Wetrich announced a change in the law and Dubry was sentenced before Wetrich was decided, application of Wetrich to Dubry’s motion to correct his sentence is barred by Murdock II.

STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 20-3018(b), 21-3503, -4701 et seq., -4711, 60-2101

CONSTITUTIONAL LAW—EVIDENCE—FIFTH AMENDMENT
FOURTH AMENDMENT—MOTIONS
STATE V. GUEIN
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,426—JUNE 28, 2019

FACTS: Police observed a suspected drug deal involving car parked in a closed Burger King lot. Officers approached the car, patted down occupants and retrieved a bag of marijuana Guein admitted was in his underwear. After arrest, Guein admitted to additional marijuana in the car. Search of the car disclosed handgun, loose marijuana, and drug paraphernalia. Guein filed a motion to suppress his statements and the evidence obtained as a result of search of his person and his car. District court: refused to suppress Guein’s statement of having marijuana in his underwear because Guein was not in custody until handcuffed; suppressed Guein’s statement of additional drugs in car, made after handcuffed and before Miranda warning; admitted post-Miranda statements, finding Guein had voluntarily waived his rights; and denied suppression of the physical evidence. Guein was convicted of felony distribution of marijuana and misdemeanor possession of paraphernalia. A divided court of appeals reversed in part and affirmed in part the district court’s decision on the motion to suppress and remanded to district court. State v. Guein, 53 Kan. App.2d 394 (2017). Entire panel upheld the admission of Guein’s statement about marijuana in underwear and the marijuana found there, finding Miranda  warnings were not necessary. Majority concluded officer’s statements to Guein were sufficiently threatening to negate the Miranda warning, and State’s failure to provide the trial transcript prevented a harmless error analysis. Conviction was set aside and a new trial ordered. Guein and State both petitioned for review.

ISSUES: (1) Admission of pre-Miranda statement; (2) admission of post-Miranda statement

HELD: Factors cited in State v. Lewis, 299 Kan. 828 (2014), are examined on facts in case, finding officer’s pre-Miranda interrogation was custodial rather than investigative. District court’s denial of motion to suppress pre-Miranda statement about marijuana in underwear is reversed.

     Under facts in case, officer’s aggressive and profane language implied physical violence toward Guein, prompting Guein’s later incriminating statement. Panel’s majority on this issue is affirmed. Remanded to district court for further proceedings.

CONCURRENCE AND DISSENT (Stegall, J.)(joined by Biles, J.): Disagrees with majority’s order to suppress Guein’s pre-Miranda statements, and would support panel’s assessment that this was an ordinary investigatory detention not requiring Miranda warnings. Agrees that Guein’s post-Miranda statements were not voluntary and must be suppressed, but does not find officer’s use of profanity as significant as the majority does. Guein was coerced because of a real and actionable threat. Law enforcement’s use of the word “fuck” does not make the circumstances more or less coercive, and majority’s reasoning suggests a politely worded threat is less coercive than a vulgar one.  

STATUTUES: K.S.A. 2018 Supp. 60-460(f); K.S.A. 20-3018(b), 22-2402(1), -3215(4), -3216(2), 60-2101(b)

constitutional law—criminal law—criminal procedure—evidence
jury instructions—prosecutors—statutes`
state v. james
sedgwick district court—affirmed
no. 117,945—june 28, 2019

FACTS: James was convicted of first-degree premeditated murder and criminal possession of a firearm. On appeal, he claimed district court erred by: refusing defense requests for instructions on lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter; refusing to instruct jury on imperfect self-defense involuntary manslaughter; failing to instruct jury to consider verdicts of premeditated murder and imperfect self-defense voluntary manslaughter simultaneously;  and admitting gruesome autopsy photos. He also claimed prosecutorial error during closing argument, claimed he was deprived his constitutional right to be present at all critical stages of the trial—namely requests for continuances, and argued cumulative error required reversal.

ISSUES: (1) Jury instructions on reckless based homicides; (2) jury instruction on imperfect self-defense of involuntary manslaughter; (3) jury instruction on simultaneous consideration of lesser included crimes; (4) admission of autopsy photos; (5) prosecutorial error; (6) constitutional right to presence; (7) cumulative error

HELD: Challenge to district court’s refusal to instruct on lesser included reckless homicides was properly preserved, and the requested instructions were both legally and factually appropriate under facts in case. District judge’s refusal to instruct jury on reckless second-degree murder and reckless involuntary manslaughter was error, but not reversible error under the statutory harmless error standard.

     Likewise, James preserved his challenge to district court’s refusal to instruct on imperfect self-defense of involuntary manslaughter. This instruction was legally appropriate, and under facts in case, also factually appropriate. Applying statutory harmlessness test, district judge’s failure to give the requested instruction was not reversible error.

     Under controlling precedent in State v. Sims, 308 Kan. 1488 (2018), pet. for cert. filed April 29, 2019, a district court is not required to instruct a jury to consider a lesser included homicide offense simultaneously with any greater homicide offense.

      No abuse of district judge’s discretion by admitting autopsy photos which were not repetitious and which allowed pathologist to explain path of bullet that killed the victim and show skull fractures that resulted.

     Prosecutor erred by stating James left the scene in a stolen car because no evidence supported a description of the car as “stolen.” Also, referencing an uncharged crime is problematic because it encourages jurors to draw inference of a defendant’s propensity to commit crimes. In light of entire record, however, this error does not require reversal.

     Because record contains no evidence that James knowingly and voluntarily waived his right to be present when first attorney requested two continuances, error is assumed. Under constitutional standard the error was harmless under facts in this case. State v. Wright, 305 Kan. 1176 (2017), is distinguished.   

     The combination of instructional errors, prosecutorial error, and assumed violation of James’ right to be present at all critical stages did not deprive James of a fair trial.

STATUTES: K.S.A. 2018 Supp. 21-5202(j), -5202(h), -5226, -5402(a)(1), -5403(a)(1), -5403(a)(2), -5801, -5803, 60-455(a); K.S.A. 2015 Supp. 21-5405(a)(4); K.S.A. 22-3402

constitutional law—criminal procedure
evidence—sentencing—statutes
state v. obregon
geary district court—reversed, sentences vacated and remanded
court of appeals—affirmed in part and reversed in part
NO. 117,422—june 28, 2019

FACTS: Obregon entered no contest pleas to possession of drugs with intent to distribute.  District court accepted the pleas, and in sentencing, applied the statutory firearm enhancement. Obregon appealed, challenging whether district court should have classified a prior Florida battery conviction as a person felony without knowing which version of the Florida crime he committed. He also claimed his no contest pleas to the base drug offenses did not include any facts upon which the enhancement could be grounded. Court of appeals concluded the district court properly calculated Obregon’s criminal history score, but held Obregon’s waiver of his right to jury trial on the firearm enhancement was invalid. Panel vacated the enhancement and remanded case to district court for proper waiver or for jury to make factual findings required by K.S.A. 2015 Supp. 21-6805(g)(1) regarding the firearm. Obregon’s petition for review granted.

ISSUES: (1) Florida battery conviction; (2) firearm enhancement

HELD: Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Obregon is entitled to application of State v. Wetrich, 307 Kan. 552 (2018), but variation to the Wetrich analysis is presented because the Kansas and out-of-state offenses are both what Kansas law refers to as “alternative means crimes.” When the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State bears the burden of establishing the defendant committed a version of the offense supporting the person classification. On record in this case, district court’s finding that Obregon committed a Florida offense with a comparable Kansas person crime is not supported by substantial competent evidence. Because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich. Sentence is vacated and case is remanded for district court to reconsider the Florida conviction’s person-crime classification.

     Panel erred by remanding his case for a jury to determine if firearm enhancement should apply. As a general rule, special questions may not be submitted to a jury for answer in a criminal prosecution, and the legislature has not created a statutory exception to the general rule against special verdicts for a firearm enhancement to be determined separately after the verdict. Obregon’s resentencing is to proceed without the firearm enhancement.

CONCURRENCE AND DISSENT (Johnson, J.): Agrees the district court must resentence Obregon without the enhancement. Also agrees the State failed to present sufficient evidence to support classification of the Florida battery conviction as a person felony, but that insufficiency of the evidence should result in vacating the sentence and remanding for resentencing of criminal history score with the Florida conviction classified as nonperson.        

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(a)(1), -5413(a)(2), -5413(g), -6801 et seq., -6805(g)(1), -6805(g)(2), -6809, -6814, -6814(b), -6814(c); K.S.A. 2015 Supp. 21-6805(g)(1), -6811(e); K.S.A. 2013 Supp. 21-6817(b)(2); K.S.A. 20-3018(b), 21-3715, -3715(a), 60-2101(b)

criminal procedure—mootness—motions—sentencing—statutes
state v. russ
sedgwick district court—affirmed;
court of appeals—affirmed
no. 115,111—june 28, 2019

FACTS: Russ was found guilty of attempted second-degree murder. His prior convictions included six Wichita municipal violations classified as person misdemeanors, five of which were eligible for conversion to a felony. Russ appealed sentencing court’s classification of prior municipal ordinance convictions as person offenses to calculate Russ’ criminal history score, arguing in part the domestic battery municipal ordinances were broader than the counterpart Kansas domestic battery statute. Court of appeals affirmed in unpublished opinion. Russ petitioned for review claiming the panel erred by: (1) looking beyond the most comparable Kansas offense of domestic battery to analyze his municipal ordinance domestic battery convictions, and (2) declining to address as moot an issue concerning his prior conviction of failure to comply with bond restrictions.

ISSUES: (1) Classifying the domestic battery municipal ordinance violations; (2) mootness

HELD: Applying State v. Wetrich, 307 Kan. 552 (2018), the panel correctly held Russ’ domestic battery ordinance violations were person offenses. Only difference between the ordinances and the Kansas domestic battery statue is the specific requirement of the relationship between the batterer and the battered, which makes the scope of the ordinance’s proscribed acts narrower, not broader.  

     Panel correctly declined to address the classification of Russ’ prior conviction for failure to comply with bond restrictions. Regardless of classification of this prior conviction, Russ’ criminal history score is unchanged since three prior domestic battery municipal ordinance violations were properly scored as person misdemeanors.

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(g)(1), -6801 et seq., -6810(a), -5811(a); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 2016 Supp. 21-6804(a), -6809, -6811(a); K.S.A. 2014 Supp. 21-5414(a); K.S.A. 20-3018(a), 60-2101(b)

 

Kansas Court of Appeals

CIVIL

DISCOVERY
FLAHERTY V. CNH INDUSTRIAL AMERICA
SALINE DISTRICT COURT – AFFIRMED
NO. 119,704 – JUNE 28, 2019

FACTS: Flaherty purchased a sprayer manufactured by CNH in early 2014. Later that year, Flaherty took it back to the dealer for maintenance and a hose adjustment. The dealer knew that there were also potential issues with one of the drive hoses at the engine starter. While the sprayer was at the dealer, it caught on fire and was completely destroyed. During the investigation, a fire investigator with the fire department accompanied law enforcement on the scene. It was his opinion that the fire was caused by an electrical issue. Neither of Flaherty's experts could definitively determine the fire's cause. Robert Hawken, a product safety specialist at CNH, investigated the sprayer in anticipation of litigation. Flaherty sued both CNH and the dealer. During discovery, Flaherty provided notice of his intent to depose Hawken. CNH filed a motion to quash and asked the court to quash the subpoena. The district court granted that motion and Hawken was not deposed. After hearing more evidence, the district court granted CNH's motion for summary judgment on all claims and Flaherty appealed.

ISSUES: (1) Denial of discovery request; (2) express warranty claims; (3) implied warranty claims

HELD: Hawken examined the sprayer over a month after the fire, and he only gave his findings to CNH's legal department and outside counsel. The dealer told Flaherty that Hawken believed the fire started in the sprayer's starter area. Hawken's opinions were protected by work-product privilege as far as the subpoena duces tecum was concerned. Hawken was also protected by non-testifying expert privilege as an in-house expert. Flaherty failed to prove that Hawken waived his privilege, and much of the privilege belonged to CNH, and Hawken has no power to waive it on the company's behalf. The warranty agreement between Flaherty and CNH disclaimed any express warranty created by descriptions of the sprayer on its website or by statements made by salespeople. And Flaherty failed to identify any specific descriptions of the sprayer on which he relied. In addition, the warranty agreement required Flaherty to prove that the sprayer had a defect in material or workmanship, which he failed to do. Any implied warranty claim had a similar requirement that Flaherty prove the existence of a defect. In addition, Flaherty failed to prove that the sprayer was defective when it left CNH's control.

STATUTES: K.S.A. 2018 Supp. 60-226(b)(4)(A), -226(b)(5), -226(b)(5)(D), -233(b)(1)(B), -256(c)(2), -456; K.S.A. 60-437, 84-2-313(1)(b), -313(2), -314(1), -314(2)(c)

 

Tags:  8807  Attorney Discipline  Geary District  Johnson District  Saline District  Sedgwick District  Shawnee District  Weekly20190702 

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June 21, 2019 Digests

Posted By Administration, Monday, June 24, 2019

Kansas Supreme Court

Criminal

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

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

ISSUE: (1) Abuse of discretion with sentencing

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

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

 

Kansas Court of Appeals

Civil

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

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

ISSUE: (1) Failure to impose intermediate sanctions

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

Criminal

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

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

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

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

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

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

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June 14, 2019 Digests

Posted By Administrator, Monday, June 17, 2019

Kansas Supreme Court

Civil

CONSTITUTIONAL ISSUES—DAMAGES
HILBURN V. ENERPIPE LTD.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 112,765—JUNE 14, 2019

FACTS: Hilburn was injured when her car was rear-ended by a semi owned by Enerpipe Ltd. Hilburn sued, claiming that the driver's negligence caused the accident, and that Enerpipe was vicariously liable for the driver's actions. Enerpipe admitted to both of these facts, and a trial was held only on the issue of damages. A jury awarded Hilburn $335,000 which included $33,490.86 for medical expenses and $301,509.14 for noneconomic losses. Defense counsel prepared a verdict form with a total award of $283,490.86 which represented the jury's total award with the amount adjusted to reflect the $250,000 cap of K.S.A. 60-19a02(d). Hilburn objected, claiming the statutory cap was unconstitutional under sections 1, 5, and 18 of the Kansas Constitution Bill of Rights. The district court affirmed the lesser award and Hilburn appealed. The court of appeals affirmed, believed itself to be bound by prior Supreme Court decisions. Hilburn's petition for review was granted.

ISSUES: (1) Issue preservation; (2) quid pro quo test for section 5 claims; (3) facts versus policy

HELD: The version of Supreme Court rule 8.03 in effect at the time Hilburn filed her petition for review allows the court to address a plain error not presented. The issue of whether the quid pro quo test applies to Hilburn's section 5 claim was properly preserved under the old rule because Hilburn preserved it in the district court and it was addressed by the court of appeals. Section 5 of the Kansas Constitution Bill of Rights preserves the jury trial right as it historically existed at common law. This protection extends to a determination of noneconomic damages. K.S.A. 60-19a02 infringes on this constitutional right. In the past, this infringement has been excused by the two-part quid pro quo test applied through a section 18 analysis. However, continued application of the prior decision in Miller, relying on stare decisis, cannot withstand scrutiny. The section 5 right to jury trial is completely distinct from the section 18 right to remedy. A statutory cap substitutes the legislature's nonspecific judgment for a jury's specific judgment. This runs afoul of the constitution's grant of an "inviolate" right to a jury. The cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.

CONCURRENCE: (Stegall, J.) Justice Stegall agrees that the quid pro quo test should be reversed in favor of an application of the plain and original public meaning of section 5. He first considers whether K.S.A. 60-19a02 even implicates section 5 and concludes that it does, since K.S.A. 60-19a02 is a procedural measure affecting who decides a particular question.

DISSENT: (Luckert, J. joined by Biles, J.) She would continue to apply stare decisis and follow Miller, analyzing this issue under the quid pro quo test. She believes Hilburn did not properly preserve this issue in her petition for review. And even if the issue is analyzed on the merits, she believes that mandatory motor carrier liability insurance provides an adequate substitute remedy for litigants.

STATUTES: Kansas Constitution Bill of Rights Sections 1, 5, and 18; K.S.A. 60-19a02, -19a02(d)

DUI—FIELD SOBRIETY TESTS—SEARCH AND SEIZURE
CASPER V. KANSAS DEPARTMENT OF REVENUE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS AFFIRMED
NO. 115,352—JUNE 14, 2019

FACTS: Casper's driving privileges were suspended after she was arrested and refused to take a blood alcohol test. An officer saw Casper make a wide turn. He followed her and did not notice any other indicators of impairment, but he still initiated a stop. The officer testified that Casper was initially cooperative but later claimed that she failed her field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a balance-on-one-foot test. After these failures, Casper was arrested. She refused to take a breathalyzer test. Based on her refusal to take a blood test, Casper's driving privileges were suspended. She appealed, but the decision was affirmed after the hearing officer found that law enforcement had reasonable grounds to believe that Casper was under the influence. The district court disagreed, holding that Casper showed that the officer lacked reasonable grounds for believing that she was driving under the influence. The Department of Revenue appealed and the court of appeals reversed the district court, finding that there were adequate grounds for the stop and arrest. Casper's petition for review was granted.

ISSUE: (1) Factual grounds for a stop

HELD: Casper's license could only be suspended if the initial arrest was lawful. And in order to have a lawful arrest, there must have been probable cause to justify the arrest. There was no evidence that Casper's breath bore a strong odor of alcohol. The district court correctly heard all of the testimony and reviewed the recordings. The evidence before the district court was substantial and competent and the court made reasonable inferences from that evidence. The court of appeals improperly discounted those findings and should have given more deference to the district court as fact-finder. The district court's reversal of the hearing officer was supported by substantial competent evidence and should be affirmed.

STATUTE: K.S.A. 2018 Supp. 8-1002(a)(1), -1001(b)(1)(a), -1020(a), -1020(h)(1)(B)

SCHOOL FINANCE
GANNON V. STATE
SHAWNEE DISTRICT COURT—PROPOSED REMEDY
SUBSTANTIALLY COMPLIES
NO. 113,267—JUNE 14, 2019

FACTS: In June 2018, the court acknowledged that almost all issues in the long-running school finance litigation had been resolved. The court found that the equity piece was satisfied, and although the adequacy piece was not yet met, the court recognized an "intent to comply." The mandate was stayed until the end of the fiscal year in order to give the State more time to make financial adjustments and reach constitutional compliance for adequacy. The legislature's proposed remedy was through passage of 2019 House Substitute for Senate Bill 16, which was passed and signed by the governor in April 2019. The bill attempts to cover inflation with additional funding, completing the safe harbor remediation plan. Senate Bill 16 now comes to the court for review.

ISSUE: (1) Compliance with safe harbor plan and accounting for inflation

HELD: The "safe harbor" plan involves the State returning to the basic funding plan approved in 2009-10, with adjustments made for inflation. These 2009-10 calculations included adjustments for virtual state aid. S.B. 16 accounts for inflation by increasing the specific base aid figure for each of the remaining four years of the remediation plan. S.B. 16 substantially complies with prior court decisions and adequately funds education. The court retains jurisdiction to ensure continued implementation of the scheduled funding.

STATUTES: Article 6, § 6(b) of the Kansas Constitution; K.S.A. 72-5132(a) 

Criminal

CRIMINAL HISTORY—JURISDICTION—SENTENCING
STATE V. WEBER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 113,472—JUNE 14, 2019

FACTS: Weber pled guilty to attempted robbery. The plea agreement assumed that his criminal history score would be C. A presentence investigation report revealed two Michigan convictions which, if scored as person felonies, would increase his criminal history score to B. The district court imposed sentence using the B score. Weber did not directly appeal his conviction or sentence. Some years later, Weber filed a motion to correct illegal sentence based on the State v. Murdock holding; he argued that because Kansas statutes did not use the person/nonperson designations at the time of his conviction, his out-of-state convictions should be designated as nonperson felonies. The district court denied his motion and Weber appealed. The court of appeals affirmed, citing Keel and Murdock II and noting that the test was to look for comparable offenses. Weber's petition for review was granted.

ISSUES: (1) Letter of additional authority; (2) sentencing authority

HELD: The State could not use a Rule 6.09(b) letter as a substitute for a responsive brief. The statutory changes and case law updates occurred well before the State's briefing deadline would have passed. Wetrich was a change in the law. Under the law at the time of Weber's sentencing, offenses had to be comparable but not identical. Because Weber's Michigan offense was comparable to a Kansas offense, his sentence was not illegal.

STATUTES: K.S.A. 2018 Supp. 21-6811(e), -6811(e)(3); 22-3504(3); K.S.A. 21-4711(e)

Kansas Court of Appeals

Civil

PATERNITY
STATE EX REL SECRETARY OF DCF V. MANSON
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,134—JUNE 14, 2019

FACTS: Traig Manson executed a voluntary acknowledgement of paternity (VAP) acknowledging that he was C.M.'s father. When Manson was asked to pay child support, he produced genetic testing results which allegedly showed that he was not C.M.'s biological father. He also claimed that he had no relationship with the child and that the child referred to another man as "Dad." The district court conducted a Ross hearing to determine whether official genetic testing was in two year old C.M.'s best interests. At the hearing, Manson explained that he allowed his name to go on C.M.'s birth certificate to help out the biological mother, but that he had never really had a true paternal relationship with C.M. In an effort to obtain support for C.M., DCF produced the VAP that Manson signed and noted that he did not rescind the signature within one year. The district court ruled that genetic testing was not in C.M.'s best interests and Manson appealed.

ISSUE: (1) Effect of VAP

HELD: Because Manson did not rescind his acknowledgement of paternity within one year, he remains C.M.'s father. Even if testing revealed that Manson was not C.M.'s father, he would still be required to pay child support because of the VAP. For that reason, the district court correctly refused to order genetic testing.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2204(b)(1)

Tags:  8807  DUI  field sobriety tests  paternity  school finance  search and seizure  Sedgwick District  Shawnee District 

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May 24, 2019 Digests

Posted By Administration, Tuesday, May 28, 2019

Kansas Court of Appeals

Civil

ADMINISTRATIVE REMEDIES
BURCH V. KECK
PAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,813—MAY 24, 2019

FACTS: Burch is a resident of the Sexual Predator Treatment Program in Larned. He filed a §1983 action claiming that SPTP officials violated his constitutional rights by seizing his property without due process. The Kansas Department for Aging and Disability Services moved to dismiss, claiming that Burch failed to exhaust administrative remedies before filing suit. The district court agreed and the case was dismissed. Burch appealed.

ISSUE: (1) Duty to exhaust administrative remedies

HELD: Section 1983 does not contain a requirement that movants exhaust administrative remedies before bringing an action under the statute. K.S.A. 2018 Supp. 59-29a24 does require participants in SPTP to exhaust administrative remedies. The federal statute pre-empts the exhaustion requirement of K.S.A. 2018 Supp. 59-29a24. The case must be remanded for proceedings on Burch's original motion.

STATUTES: 28 U.S.C. § 1915, 42 U.S.C. § 1983, § 1997 (1)(B), § 1997e; K.S.A. 2018 Supp. 59-29a01, -29a02, -29a24

NEGLIGENCE—STATUTE OF REPOSE
DETERS V. NEMAHA-MARSHALL ELECTRIC COOPERATIVE ASSOCIATION
NEMAHA DISTRICT COURT—AFFIRMED
NO. 119,200—MAY 24, 2019

FACTS: In 1994, the Deterses purchased from Nemaha-Marshall a GTS, a device which allowed them to safely connect a generator to household wiring. The GTS was installed by Nemaha-Marshall on the Deterses' electric pole. In 2000, the Deterses transferred all of their electricityincluding the GTSto a new house, shop, and implement shed on their property. Over the course of a year, the Deterses had to replace multiple appliances due to malfunctions. The Deterses claimed this was due to faulty wiring in the GTS. Alliance, their homeowners insurer, denied their claim, pointing to a lack of coverage for low voltage events. The Deterses sued both Nemaha-Marshall and Alliance for damages related to replacement appliances. Nemaha-Marshall moved for summary judgment on statute of repose grounds, since it had been at least 10 years since the GTS was connected to the Deterses' property. Alliance also moved for summary judgment, citing a lack of coverage in the Deterses' insurance policy. Both motions were granted and the Deterses appeal.

ISSUES: (1) Statute of repose; (2) insurance coverage; (3) bad faith investigation

HELD:The statute of repose clock begins running on the last act giving rise to the cause of action, not the last contact between the parties. Plaintiffs must bring their negligence action within 10 years of the original wrongful act. In this case, that act occurred in 2000 and the Deterses' claim is barred by the statute of repose. Much of the Deterses' argument is waived due to the failure to adequately brief the argument. To the extent that issues have been preserved, the district court correctly found that the homeowners' insurance policy provided no coverage for low voltage events. Alliance investigated this claim appropriately, especially since the Deterses proposed two different causes for the damage.

STATUTE: K.S.A. 60-513, -513(a)(4), -513(b)

criminal

criminal procedure—motions—sentences—statutes
state v. sheppard
wyandotte district court—affirmed
no. 119,454—may 24, 2019

FACTS: Sheppard was convicted in 2006 of second-degree murder and criminal possession of a firearm. Convictions were affirmed in 2009. Sheppard filed in 2017 a pro se motion to dismiss, reiterating the claim in his unsuccessful 2011 K.S.A. 60-1507 motion that he was arrested without probable cause because affidavit facts were false. District court denied Sheppard’s motion for leave to file the motion to dismiss out of time, finding no showing of excusable neglect. Sheppard appealed. He then filed a pro se motion to correct an illegal sentence, arguing that under the 2016 amendments to K.S.A. 21-6810, the district court improperly included a decayed 1994 Missouri juvenile adjudication in calculating criminal history. District court denied the motion. Sheppard appealed. Appeals consolidated.

ISSUES: (1) Excusable neglect; (2) motion to correct illegal sentence—decayed juvenile adjudications

HELD: A showing of excusable neglect under different statutes, cases and administrative regulations is discussed. Under facts in this case and circumstances surrounding the untimely filing, the appellate court found no abuse of the district court’s discretion in finding Sheppard failed to establish excusable neglect.

The 2016 amendments to K.S.A. 21-6810 do not apply to Sheppard’s case. Court of appeals panels have consistently held the 2016 amendments to the juvenile decay rules are substantive in nature, and the legislature has included no clear language that intended the 2016 amendments to operate retroactively. District court correctly included Sheppard’s 1994 juvenile residential burglary adjudication in the criminal history score.

STATUTES: K.S.A. 2018 Supp. 21-5807, -6803, -6803(e), -6810(d), -6810(e), 22-3208(4), -3504, -3504(3), 60-206(b)(1)(B), 60-206(b)(1)(B); K.S.A. 21-3715, -4710, -6810, 60-206(b), -260(b)(1), -1507; K.S.A. 21-4710 (Furse 1995)

criminal law—restitution—sentences—statutes
state v. Smith
shawnee district court—affirmed
no. 119,356—may 24, 2019

FACTS: Smith was convicted of possession of stolen property: a motorcycle that was damaged; and a scooter the Highway Patrol had towed, and then the towing company sold the scooter without first contacting the owner. Restitution order included $1365.77 for motorcycle repair, and $2141.93 replacement value for the scooter. Smith appealed, arguing insufficient evidence supported the amount of damage to the motorcycle. He also claimed that given the actions of law enforcement and the towing company there was no direct causal link between his crime and loss of the scooter, and argued the scooter owner should have been awarded fair market value rather than replacement cost.

ISSUES: (1) Restitution—sufficiency of the evidence; (2) restitution—causal link; (3) restitution—replacement value

HELD: District court found the motorcycle owner’s testimony about the condition of the motorcycle before and after it was stolen, and the need for the estimated repairs, was uncontroverted. Substantial competent evidence supported the district court’s findings.

As in State v. Arnett, 307 Kan. 648 (2018), but for Smith’s crime the scooter would not have been seized and towed. Applying Arnett, the district court’s factual determination of causation is accepted.

Under the restitution statute, K.S.A. 2015 Supp. 21-5801(a)(4), the district court was legally permitted to order replacement costs as restitution, and Smith agreed that the scooter owner’s loss exceeded $2000.

STATUTES: K.S.A. 2018 Supp. 21-6604(b)(1); K.S.A. 2015 Supp. 21-5801, -5801(a)(4); K.S.A. 21-6604(b)(1)

Tags:  8806  Nemaha District  Pawnee District  Shawnee District  Wyandotte District 

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April 26, 2019 Digest

Posted By Administration, Monday, April 29, 2019

Kansas Supreme Court

 

Civil

EQUAL PROTECTION—KANSAS CONSTITUTION
HODES & NAUSER, MDS V. SCHMIDT
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 114,153 – APRIL 26, 2019

FACTS: Senate Bill 95 bans the most common type of second-trimester abortion, referred to in medical terms as Dilation and Evacuation (D&E). Doctors Hodes and Nauser, who perform both regular abortions and D&Es, sought to temporarily enjoin SB 95 on grounds that it violates sections 1 and 2 of the Kansas Constitution Bill of Rights. The State objected, arguing both that the Kansas Constitution does not provide a right to abortion or, in the alternative, that SB 95 is not unduly burdensome. The district court agreed with the doctors and issued the temporary injunction. The State immediately appealed and the Kansas Court of Appeals, sitting en banc, affirmed the district court by splitting 6-1-7. The State's petition for review was granted.

ISSUES: (1) Establishing a constitutional right; (2) level of scrutiny

HELD: Sections 1 and 2 of the Kansas Constitution Bill of Rights have much the same effect as the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, but the Kansas Supreme Court has the right to interpret the amendments more expansively than do federal courts who interpret the corresponding federal provisions. Section 1 of the Kansas Constitution Bill of Rights acknowledges rights that are distinct from and broader than the United States Constitution. This includes the right to personal autonomy and, in turn, the right of a woman to make her own decisions regarding her body, health, and family formation. The State may encroach on these natural rights only with a compelling justification. The fundamental right implicated here demands that strict scrutiny be used to evaluate the proposed legislation; the court rejects the Casey standard of "undue burden." Even though the district court used an undue burden standard the error is harmless. The district court correctly issued the temporary injunction because the doctors proved that they are substantially likely to prevail on their claim that SB 95 does not promote a compelling government interest.    

CONCURRENCE: (Biles, J.) The correct result was reached, including the findings on the meaning of section 1 of the Kansas Constitution. But the strict scrutiny established by the majority offers little guidance for application or how to differentiate from the undue burden standard.  

DISSENT: (Stegall, J.) The majority's decision fundamentally alters the structure of our government. Section 1 of the Kansas Constitution Bill of Rights is a guarantee of the right of republican self-government. Instead of using a strict scrutiny analysis as relates to a fundamental right, the proper standard is "rational basis with bite." The linchpin of the analysis is questioning what Kansas citizens have authorized the legislature to do on their behalf. Here, the analysis would question whether SB 95 is reasonably related to the furtherance or protection of the common welfare.

STATUTES: Kansas Constitution Bill of Rights, sections 1 and 2

Tags:  8805  Shawnee District  Vol. 88  Weekly20190430 

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April 19, 2019 Digests

Posted By Administrator, Monday, April 22, 2019

Kansas Supreme Court

CIVIL

DATE OF INJURY—WORKERS COMPENSATION
KNOLL V. OLATHE SCHOOL DISTRICT NO. 233
WORKERS COMPENSATION BOARD OF APPEALS—REVERSED and REMANDED

COURT OF APPEALS—AFFIRMED 
NO. 116,167—APRIL 19, 2019

FACTS: Knoll filed a claim for workers compensation coverage and requested a hearing. The claim did not proceed to final hearing within three years, so the school district moved for dismissal. The ALJ denied that request, holding that under K.S.A. 2009 Supp. 44-523(f) Knoll had five years to either proceed to final hearing or request an extension of time. The Board affirmed that holding but the Court of Appeals reversed, finding that K.S.A. 2011 Supp. 44-523(f)(1) controlled Knoll's claim and required either a final hearing or a motion within three years. Knoll's petition for review was granted.

ISSUE: (1) Which version of K.S.A. 44-523 controlled Knoll's claim

HELD: The only issue is which version of the statute controls—the 2009 version, which allows five years, or the 2011 version, which allows three years. The beginning point for applicable law in a workers compensation case is the date of injury. For Knoll, that was in 2009. But when a law changes, the amendments apply to the worker if the changes are procedural in nature. Statutes of limitation are considered procedural, and the 2011 amendments to K.S.A. 44-523 were very similar to a statute of limitation. And the changes went into effect before Knoll filed her application for hearing. K.S.A. 2011 Supp. 44-523(f)(1) applies to any cases that were pending during its enactment where the claimant did not file an application for hearing until after the 2011 amendments took effect.

DISSENT: (Rosen, J.) The 2011 changes to K.S.A. 44-523 do not create a three-year time limit. While the 2011 statute was the correct one to apply to Knoll's claim, it does not bar the ALJ from considering Knoll's request for an extension of time.

STATUTES: K.S.A. 2011 Supp. 44-523(f)(1); K.S.A. 2009 Supp. 44-523(f)

ELECTRONIC FILING—MOTIONS TO DISMISS
LAMBERT V. PETERSON
WYANDOTTE DISTRICT COURT—AFFIRMED
NO. 117,344—APRIL 19, 2019
 

FACTS: Lambert filed a medical malpractice action as the administrator of the estate of Stan Novak. All defendants filed motions to dismiss on grounds that Lambert's petition was barred by the statute of limitations; file stamps on the petition showed it was filed one day after the two-year limitations period expired. Lambert responded by claiming that she electronically filed the petition within the statute of limitations but it was rejected by the clerk's office. Once she learned of the rejection she made the required changes and uploaded the petition for a second time, although it was outside of the statute of limitations. Lambert argued that the petition should be deemed filed as of the date of payment. The district court heard the motion, at which Lambert provided no testimony and presented no affidavit or declaration. The district court ruled that it was unable to equitably extend the statute of limitations and dismissed the action. Lambert appealed and the Supreme Court took the case on transfer.

ISSUE: (1) Date of filing

HELD: It is undisputed that the limitations period ran two years following Novak's death, and it is undisputed that the petition was filed one day after that date. Lambert's claim that the petition was actually filed on that date is not supported by any evidence in the record on appeal. Lambert had the opportunity to present evidence, through an affidavit or declaration, but she failed to do so. Lambert also failed to present the actual documents that were transmitted in her first attempt to electronically file the petition. Lambert's failure to present adequate evidence means the district court's ruling must be affirmed.

STATUTES: K.S.A. 2018 Supp. 60-212(d), -256, -656(c)(2), -656(e)(2); K.S.A. 60-513(a)(4), -513(a)(5), -513(a)(7)

WORKERS COMPENSATION
GLAZE V. J.K. WILLIAMS LLC
WORKERS COMPENSATION BOARD—BOARD OF APPEALS IS AFFIRMED
BOARD IS AFFIRMED
NO. 115,763—APRIL 19, 2019

FACTS: Glaze claimed that he was injured while working for J.K. Williams, LLC, and he filed a motion for hearing. In 2016, Williams moved to dismiss claiming that Glaze's claim should be dismissed because the claim had been neither heard nor settled within three years of filing the application for hearing. After the motion was filed, Glaze filed a request for extension of time. The ALJ granted Williams' motion to dismiss, finding that K.S.A. 2011 Supp. 44-523(f)(1) required dismissal because Glaze did not request an extension of time within three years of the filing of his application for hearing. This decision was confirmed by the Workers Compensation Board of Appeals and again by the Court of Appeals. Glaze's petition for review was granted.

ISSUE: (1) Requirements of K.S.A. 2011 Supp. 44-523(f)(1)

HELD: K.S.A. 2011 Supp. 44-523(f)(1) unambiguously prohibits an ALJ from granting an extension of time unless the motion for extension has been filed within three years of the filing of the application for hearing.

DISSENT: (Rosen, J.) Justice Rosen would look beyond the majority's grammatical reasoning when considering ambiguity. This statute is susceptible to multiple interpretations and for that reason, he believes the Legislature intended the three-year time limit to apply to a conclusive presumption of good cause.

STATUTE: K.S.A. 2011 Supp. 44-523(f)(1)

CRIMINAL 

consTitutional law—criminal law—criminal procedurE—evidence—motions—sentences—statutes
state v. boysaw
sedgwick district court—affirmed
court of appeals—affirmed
NO. 112,834—april 19, 2018

FACTS: Boysaw was charged with aggravated indecent liberties with a child. He filed motion in limine to bar evidence of his criminal history or uncharged conduct. Finding probative value of the proffered evidence was not outweighed by prejudicial effect, district court allowed State to introduce evidence of Boysaw’s 1987 Nebraska sexual assault conviction, for purposes of showing both propensity and motive or intent and absence of mistake. Jury convicted Boysaw on the charged offense. Life sentence without parole imposed.  Boysaw appealed claiming: (1) State provided insufficient evidence his conduct was intended to arouse or satisfy sexual desires; (2) admission of evidence of the Nebraska conviction violated fair trial guarantees in U.S. and Kansas constitutions; (3) district court erred in weighing probative value of prior conviction evidence against prejudicial effect; and (4) error to use the Nebraska conviction to sentence him as a habitual sex offender. Court of appeals affirmed, 52 Kan. App. 2d 635 (2016). Review granted.

ISSUES: (1) Sufficiency of the evidence; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d); (3) probative value of prior conviction versus prejudicial effect; (4) sentencing

HELD: Evidence of Boysaw’s intent was circumstantial but compelling enough on the record to provide more than sufficient evidence to prove elements of the crime.

K.S.A. 2018 Supp. 60-455(d) does not violate federal constitutional protections. Court outlines law in effect for admission of evidence under K.S.A. 60-455 in State v. Prine, 287 Kan. 713 (2009)(Prine I), the Legislature’s amendment of the statute in response, and rejection of the ex post facto challenge to application of the amended statute in State v. Prine, 297 Kan. 460 (2013)(Prine II). Given the historical use of propensity evidence in Kansas, coupled with safeguard of weighing probative against prejudicial effect of the evidence, the statute does not offend any principle of justice so rooted in traditions and conscience of the people of Kansas that it must be deemed fundamental. State constitutional argument is not decided because Boysaw failed to adequately brief why a different result should follow under state guidelines. Long history of coextensive analysis of rights under the two constitutions is noted for consideration in any future argument on this issue.

K.S.A. 2018 Supp. 60-455 and Fed.R.Civ.P. 403 are compared. In Kansas, the weighing of probative value versus prejudicial effect is a judicial construct rather than rule based. Factors to be considered in that weighing are set forth. In this case, district court’s analysis of the admissibility of K.S.A. 2018 Supp. 60-455(d) evidence is approved and upheld.

Boysaw abandoned his claim that the Nebraska conviction did not qualify as a sexually violent crime in Kansas, and his challenge to the constitutionality of K.S.A. 2018 Supp. 21-6626 was defeated by controlling caselaw.

STATUTES: K.S.A. 2018 Supp. 21-5506(b)(3), -6626, 60-455, -455(d); K.S.A. 2012 Supp. 21-5506(b)(3)(A), -5506(c)(3); K.S.A. 2009 Supp. 21-4642; K.S.A. 60-455

appeals—criminal procedure—motions—sentences—statutes
state v. murdock
shawnee district court—reversed and remanded
NO. 117,315—april 19, 2019

FACTS: Murdock was convicted of aggravated robbery and robbery. On appeal, Kansas Supreme Court reversed and remanded for resentencing, finding Murdock’s prior out-of-state convictions must be scored as nonperson offenses, and holding the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed. 299 Kan. 312 (2014). At resentencing, district court applied Murdock and scored the out-of-state convictions as nonperson felonies, resulting in a criminal history of C instead of A. Six months later, State v. Keel, 302 Kan. 560 (2015), overruled Murdock, holding the comparable Kansas offense is the one in effect at the time the current crime of conviction was committed. State then moved to correct Murdock’s sentence. District court granted the motion and sentenced Murdock a third time, finding a criminal history score of A. Murdock appealed, arguing his second sentence was legally imposed under Murdock, and did not become illegal after Keel changed the law. While his appeal was pending, the legislature amended K.S.A. 22-3504 to state a sentence is not made illegal by a change in the law after the sentence is pronounced. Case transferred to Kansas Supreme Court, which granted supplemental briefing on retroactive application of the amended statute, and on Murdock’s alternative argument based on State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Legality of sentence

HELD: Under K.S.A. 22-3504, the legality of a sentence is controlled by the law in effect at the time the sentence was pronounced. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes. K.S.A. does not give either party the benefit of later changes in the law, but does give both parties the opportunity to revisit a merits determination of legality in the limited circumstance when there is reason to think that determination was wrong in the first place. Here Murdock’s second sentence was legally imposed according to the Murdock mandate, and Keel did not render Murdock’s second sentence illegal. Reversed and remanded to reinstate Murdock’s lawful sentence. Applicability of Wetrich and retroactivity of the amendment to K.S.A. 22-3504 is not considered.

CONCURRENCE (Biles, J.): Concurs in the result.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2015 Supp. 21-6810(d)(2), -6811(e)(3); K.S.A. 21-4711(e), 22-3504, -3504(1) 

criminal law—criminal procedure—jury instructions
state v. qualls
shawnee district court—reversed and remanded
NO. 115,648—april 19, 2019

FACTS: Qualls convicted of premeditated first-degree murder. Conviction reversed, based on district court’s failure to give lesser included offenses instructions. 297 Kan. 61 (2013). On retrial, jury again found him guilty of premeditated first-degree murder. Qualls appealed on issues including alleged error in not granting a defense request for a self-defense instruction.

ISSUE: (1) Self-defense instruction

HELD: State v. Haygood, 308 Kan. 1387 (2018), clarified the objective and subjective requirements that must be met to receive a self-defense instruction, and the kind of evidence that suffices to meet those requirements. In the present case, a self-defense instruction was legally appropriate, and under Haygood, Qualls’ testimony was sufficient to make the self-defense instruction factually appropriate. Under facts in this case, denying the requested self-defense instruction was error, and the error was not harmless. Reversed and remanded to district court.

STATUTE: K.S.A. 2017 Supp. 21-5108(c), -5222

constitutional law—criminal law—criminal procedure—evidence—motions—sentences—statutes
state v. razzaq
sedgwick district court—affirmed; court of appeals—affirmed
NO. 114,325—April 19, 2019

FACTS: Razzaq was convicted of aggravated indecent liberties with a child. Court of appeals affirmed the conviction in an unpublished opinion. Razzaq’s petition for review granted on claims that: (1) district court erred in allowing a State witness to introduce fact of Razzaq’s prior convictions in Missouri for sex crimes, (2) K.S.A. 2918 Supp. 60-455(d) violates Kansas Constitution’s right to fair trial; (3) Court of appeals inadequately addressed the speedy trial issue raised in supplemental briefing; and (4) constitutional error to use prior convictions to enhance sentence.

ISSUES: (1) Probative value of prior convictions versus prejudicial effect; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d) under Kansas Constitution; (3) speedy trial; (4) sentencing

HELD: As held in State v. Boysaw (Case No. 112,834, decided this date), safeguards in Kansas courts for admission of evidence of other bad acts resemble Federal Rule of Evidence 403, requiring a district court to weigh probative value of such evidence against the danger of unfair prejudice. In this case, the district court implicitly weighed the probative value of evidence of the Missouri convictions against danger of undue prejudice and did not abuse its discretion in admitting the evidence.

No violation of the Kansas Constitution. To the extent Razzaq argues that other states have found state constitutional violations in their bad-acts evidentiary statutes, no similarity to Kansas Constitution is shown.

District court and court of appeals correctly determined that the record does not support Razzaq’s speedy trial claims.

Constitutional challenge to Razzaq’s sentence is defeated by State v. Ivory, 273 Kan. 33 (2002).       

STATUTES: K.S.A. 2018 Supp. 22-3402(b), 60-455(d); K.S.A. 2013 Supp. 60-455(d); K.S.A. 21-3504(a)(1) 

criminal procedure—jurisdiction—motions —post-conviction relief
stAte v. robertson
butler district court—affirmed
NO. 118,427—april 19, 2019

FACTS: Robertson was convicted of first-degree murder, arson, and aggravated burglary. The Kansas Supreme Court affirmed the convictions and sentences on direct appeal, 279 Kan. 291 (2005), and rejected various post-conviction motions seeking relief under K.S.A. 22-3504 and K.S.A. 60-1507. Robertson then invoked jurisdiction under K.S.A. 22-3504 to file motion to correct illegal sentence and motion to dismiss for lack of jurisdiction. He alleged fatal defect in the charging document because it named him as an individual rather than sovereign, and used an incorrect (non-trust) version of his name. He also reserved rights not to perform under Kansas statutes that he construed as commercial contracts. District court summarily denied relief. Robertson appealed.

ISSUES: (1) Motion to correct illegal sentence; (2) motion to dismiss and K.S.A. 60-1507

HELD: Robertson cannot collaterally attack a conviction through a motion to correct an illegal sentence filed under K.S.A. 2018 Supp. 22-3504 that claims a defective complaint meant the district court lacked jurisdiction to convict. Personal jurisdiction distinguished from Robertson’s reliance on subject matter jurisdiction caselaw.

K.S.A. 2018 Supp. 22-3504 provides no statutory basis for jurisdiction over  Robertson’s motion to dismiss. Even if liberally construed as a motion under K.S.A. 2018 Supp. 60-1507, the motion would be procedurally barred as successive and filed out of time.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(1), -3504(3), -3601(b)(3), 60-1507, -1507(c), -1507(f)(1), -1504(f)(2); K.S.A. 22-3504, 60-1507 

Kansas Court of Appeals

CIVIL

PARENTS AND CHILDREN
IN RE W.L.
CRAWFORD DISTRICT COURT—AFFIRMED
NO. 119,536—APRIL 19, 2019

FACTS: M.S. and E.L. were in a same-sex relationship but never married. E.L. conceived two children during the relationship, using artificial insemination. There was never a written agreement regarding parentage and it is undisputed that M.S. is not a biological parent and never adopted the children. There was testimony that M.S. was not very involved during the pregnancy and made few decisions regarding the care of the children. After the couple split, M.S. saw the children regularly but E.L. had concerns over whether M.S. was a fit parent. M.S. filed a parentage action. After a trial, the district court concluded that even if M.S. could establish a presumption of parentage under the Kansas Parentage Act, E.L. rebutted that presumption by proving that M.S. failed to meet the criteria of a functional parent.  

ISSUES: (1) Presumption of parentage; (2) rebuttal of presumption; (3) best interests analysis; (4) equal protection

HELD: Under the KPA, an unmarried person seeking to establish a parent-child relationship with a child conceived using artificial reproductive technology must attempt to do so by using the procedure established by the KPA. Although there was no written acknowledgment of parentage in this case, the district court seemed to apply the presumption, to M.S.'s benefit. Although it would have been better to have explicitly done that analysis, any failure by the district court to do so was harmless. The absence of a written agreement makes it difficult to interpret the parties' intent. In the absence of that written agreement, E.L. met her burden to overcome the presumption in favor of M.S. This is especially true because the district court found E.L. to be more credible than M.S., and credibility determinations are not reviewable on appeal. The district court was not required to make a best interests finding, but doing so was not erroneous. M.S. fails to prove that the KPA treats classes of people differently.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2205, -2208(a), -2208(a)(4), -2208(b), -2220, -2302, -2303, 59-2114, -2115

Tags:  Butler District  Crawford District  Sedgwick District  Shawnee District  Weekly20190423  Workers Comp  Wyandotte District 

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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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November 2, 2018 Digests

Posted By Administration, Monday, November 5, 2018

Kansas Court of Appeals

CIVIL

CONSTITUTIONAL LAW—FEDERAL PREEMPTION—PUBLIC UTILITIES—STATUTES
STATE v. BNSF RAILWAY COMPANY
CHASE DISTRICT COURT—REVERSED
NO. 118,095—NOVEMBER 2 , 2018

FACTS: District court convicted Burlington Northern Santa Fe (BNSF) of violating K.S.A. 66-273 for blocking a roadway in Chase County for approximately four hours. The statute prohibits trains from standing on a public road in or near a city or town for more than 10 minutes. BNSF appealed on issues including whether the Kansas statute is preempted by the federal Interstate Commerce Commission Termination Act (ICCT) and the Federal Railroad Safety Act.

ISSUE: Federal preemption of state law

HELD: The ICCTA pre-empts K.S.A. 66-273. BNSF’s conviction is reversed as a matter of law.  ICCT created the Surface Transportation Board (STB), giving it jurisdiction to regulate railroad transportation. While no court has addressed whether federal law preempts K.S.A. 66-273 or its predecessors, nearly all federal and state courts have concluded that state laws regulating how long a train can block a railroad crossing, and civil claims for alleged violations of state anti-blocking statutes, are preempted because they specifically target railroad operations.  Likewise, K.S.A. 66-273 infringes upon the exclusive jurisdiction of the STB because the statute specifically targets railroad carriers and has more than a remote or incidental effect on railroad operations.  

STATUTES: 49 U.S.C. §§ 1001 et seq. and 10501(a)-(b) (2016); K.S.A. 66-273, -274

MUNICIPALITIES—PROPERTY
JAYHAWK RACING PROPERTIES V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,035—NOVEMBER 2, 2018

FACTS: In 2006, the City issued $10 million in Sales Tax and Revenue Bonds to finance improvements to Heartland Park racetrack. At the time the bonds were issued, the City owned Heartland Park in fee simple for a term of years, subject to Jayhawk Racing's reversionary interest. When the bonds failed to produce adequate revenue, the City indicated a desire to purchase Jayhawk Racing's reversionary interest in the property so that the City owned the facility outright. It was anticipating that this purchase would also be financed by the issuance of STAR bonds. But after an election changed the composition of the Topeka City Council, the City decided not to pursue the STAR bond sale. Without STAR bonds, there was no funding for the purchase of Jayhawk Racing's reversionary interest. Jayhawk Racing sued the City for breach of contract. The district court granted the City's motion for summary judgment, finding that the City could not bind its successors to issue STAR bonds. Jayhawk Racing appealed.

ISSUES: (1) Nature of the contract; (2) enforceability of the contract; (3) cash-basis laws

HELD: Municipal corporations have both governmental and proprietary capacities. The contract to purchase Jayhawk Racing's reversionary interest was a proprietary contract akin to a purchase agreement. Because the contract is proprietary, future City Councils were bound by the agreement. The district court erred when it focused only on the method of funding. The contractual provision which provided for the issuance of bonds is an exception to the Cash-Basis and Budget Laws.

STATUTES: K.S.A. 2017 Supp. 10-1116(a); K.S.A. 10-1112, -1119, 12-3013(e)(1), 79-2935

PATERNITY—PROBATE
IN RE ESTATE OF FECHNER
GEARY DISTRICT COURT—VACATED AND REMANDED
NO. 118,809—NOVEMBER 2, 2018

FACTS: Chad Fechner died in 2014, intestate and with only one living heir, his aunt, Rita Young. She opened a probate estate and was surprised when Gary Fechner filed a claim alleging that he was Chad's half uncle. Rita questioned the accuracy of the birth certificate that Gary put forth as proof; there had been prior suggestions that Chad's father was the product of an extramarital affair, which would mean he did not share DNA with Gary. Rita asked the district court to order Gary to undergo DNA testing to prove his biological relationship to Chad. Gary objected, claiming there was no authority to order DNA testing in a probate case. The district court agreed, disallowed the DNA testing, and relied on Gary's evidence in proclaiming him an heir. Rita appealed.

ISSUE: (1) Ability to order DNA testing in a probate case

HELD: If Gary truly is the brother of Chad's father, he would be an heir under the probate code. The probate code defines "children" as "biological children" or as children whose parentage has been determined under the Kansas Parentage Act. The Kansas Parentage Act allows for biology, adoption, or a determination under the Parentage Act. In this case, there is no way to initiate a Parentage Act case because Chad's father died many years ago. The Code of Civil Procedure allows for DNA testing in a probate case. But the district court must make Parentage Act and Ross findings about whether such testing is warranted. The district court's mistake of law about its ability to order testing was an abuse of discretion. That court should reconsider Rita's request.

STATUTES: K.S.A. 2017 Supp. 23-2209(a), -2212(a), 60-235(a)(1), -235(a)(2); K.S.A. 59-501(a), -504, -508, -2212

JURISDICTION
ALLISON V. STATE
MONTGOMERY DISTRICT COURT—DISMISSED
NO. 114,607—NOVEMBER 2, 2018

FACTS: Allison was convicted of serious felonies, and his convictions were affirmed on direct appeal. He then filed a motion for K.S.A. 60-1507 habeas corpus relief, claiming that trial counsel was ineffective. The district court appointed counsel for Allison and held an evidentiary hearing. At the conclusion of that hearing, the district court denied Allison's motion, finding that trial counsel was constitutionally sufficient. Allison docketed an appeal and then asked for a remand to the district court under State v. Van Cleave so that he could argue that his K.S.A. 60-1507 counsel was ineffective. After the hearing, the district court concluded that Allison was prejudiced by ineffective counsel at his K.S.A. 60-1507 hearing, and that the only remedy was to hold a new hearing on that motion. The State appealed that ruling.

ISSUE: (1) Jurisdiction

HELD: It is undisputed that ruling being appealed here is not a final decision. It did not dispose of the entire merits of the issue at hand—whether Allison's trial counsel was ineffective. The hearing on the Van Cleave remand was only an intermediate step. Because the ruling is not final, the court lacks jurisdiction to hear the appeal at this time. The appeal is dismissed.

STATUTES: K.S.A. 2017 Supp. 60-1507(d), -2102(a)(4), -2102(c); K.S.A. 60-1507

CRIMINAL

CONSTITUTIONAL LAW—CRIMINAL LAW—FOURTH AMENDMENT—SEARCH AND SEIZURE
STATE v. RITCHEY
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 118,905—NOVEMBER 2, 2018

FACTS: Ritchey was arrested for an outstanding warrant while sitting as a front-seat passenger in a parked van. After Ritchey was out of the van and handcuffed, officer searched purse Ritchey left in the van and found drug residue. Ritchey was charged with possession of methamphetamine. She filed a motion to suppress, arguing the drug evidence was found during an illegal search of her purse. District court granted the motion, finding search of Ritchey’s purse was neither a search incident to arrest nor an inventory search. State filed interlocutory appeal, arguing the search was incident to the arrest, and even if illegal, the evidence would have been inevitably found during an inventory search at the jail. State also argued suppression did not advance purpose of the exclusionary rule.

ISSUE: Warrantless search of purse

HELD: District court properly suppressed evidence from the purse because State failed to show any exception for a warrantless search. Officers’ search of the purse was not a valid search incident to a lawful arrest where the purse was not on Ritchey’s person, there was no threat that Ritchey could use any weapons in her purse against the officers, and no possibility the purse contained evidence of her crime of arrest—an outstanding warrant. Next, applying rationale in State v. Baker, 306 Kan. 585 (2017), no showing that items within the closed purse would have inevitably been discovered where there was no evidence that police had policy to take items like the purse into possession for safekeeping, and no evidence the purse was sent along with Ritchey to the jail. Finally, State’s argument that suppression of the evidence in this case did not serve purpose of the exclusionary rule is rejected.

STATUTE: K.S.A. 2017 Supp. 22-3603

Tags:  114607  118035  118095  118809  118905  Chase District  Geary District  Montgomery District  Shawnee District  Weekly11062018 

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October 3 and October 5, 2018 Digests

Posted By Administration, Tuesday, October 9, 2018

Kansas Supreme Court

Attorney Discipline

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

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

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

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

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

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

Civil

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

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

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

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

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

criminal

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

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

ISSUE: Appellate jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cumulative error claim fails.

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

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

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