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August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

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

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

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

criminal

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

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 In unpublished opinion the Court of Appeals affirmed Braun’s conviction.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

ISSUE: Stipulated facts in support of conviction on alternative charge

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: Change of law—constitutional error

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

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

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

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

 

Kansas Court of Appeals

criminal

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

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

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

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

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

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

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August 7, 2020 Digests

Posted By Administration, Monday, August 10, 2020

Kansas Supreme Court

criminal

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

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

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

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

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

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

STATUTES: None

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

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

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

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

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

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

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

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

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

STATUTES: None

 

Kansas Court of Appeals

criminal

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

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

ISSUE: Proximate result jurisdiction

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

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

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

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July 17, 2020 Digests

Posted By Administration, Monday, July 20, 2020

 

Kansas Supreme Court

 

CRIMINAL

 

ATTORNEYS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MENTAL COMPETENCY

STATE V. BURDEN

SUMNER DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,819 - JULY 17, 2020

 

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

 

ISSUE: (1) Standard for determining mental competency

 

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

 

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

 

CRIMINAL PROCEDURE—MOTIONS—STATUTES

STATE V. EDWARDS

SHAWNEE DISTRICT COURT—AFFIRMED

NO. 120,600—JULY 17, 2020

 

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

 

ISSUE: (1) DNA testing statute

 

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

 

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

 

CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—STATUTES

STATE V. HARRIS

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

NO. 116,515—JULY 17, 2020

 

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

 

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

 

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

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

 

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

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

 

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

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—JURIES—STATUTES

STATE V. HARRISON

JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,670—JULY 17, 2020

 

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

 

ISSUE: (1) Response to jury’s question

 

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

 

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

 

 CRIMINAL PROCEDURE—MOTIONS—POSTCONVICTION RELIEF—STATUTES

STATE V. HILL

OSAGE DISTRICT COURT—AFFIRMED

NO. 119,359—JULY 17, 2020

 

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

 

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

 

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

 

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

 

 

Kansas Court of Appeals

 

CIVIL

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

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June 5, 2020 Digests

Posted By Administration, Tuesday, June 9, 2020

Kansas Supreme Court

 

Civil

TRUSTS
IN RE ST. CLAIR TRUST REFORMATION
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,050—JUNE 5, 2020

FACTS: Jill St. Clair executed a trust agreement in September 2003. St. Clair's husband, William, was named a life beneficiary of the trust's income. Upon his death, the trust's income would be distributed to Jill and William's children and grandchildren, with the principal eventually being distributed to the grandchildren or their estates. William had previously created his own trust with an identical distribution scheme. Both trusts were funded with identical amounts, and both trusts were prepared by the same attorney. Mr. Davidson drafted the trusts to make sure that the trust assets were not included in either William or Jill's taxable estates. At the time the trust was executed, Jill believed it contained the necessary provisions for the trust assets to be excluded from both taxable estates. Unfortunately, the trust contained a drafting error which resulted in the trusts becoming reciprocal, with the assets of Jill's trust being included in William's estate upon his demise, and vice versa. The trust as written did not accurately express Jill's intent. In order to correct the drafting error, Jill and her trustee petitioned the district court for an order reforming Jill's trust to include provisions which would prevent the trusts from becoming reciprocal. The proposed amendment was served on all beneficiaries, with no objection. The district court ordered that the trust be reformed to correct the scrivener's error.

ISSUE: (1) Whether trust should have been reformed

HELD: The district court's decision was appealed in order to satisfy the requirements of Commissioner v. Estate of Bosch, and the case was transferred from the Kansas Court of Appeals. The record on appeal shows that Jill and the trustee demonstrated by clear and convincing evidence that Jill's intent in creating and funding the trust was adversely affected by a drafting error, making it necessary to reform the trust. Reformation destroys the economic symmetry of the trusts, allowing the trust to be consistent with Jill's original intent. The reformation is affirmed.

STATUTES: K.S.A. 2018 Supp. 20-3017; K.S.A. 58a-415

criminal

appeals—criminal procedure—evidence—juries—verdicts
state v. brown
cowley district court—affirmed; court of appeals—reversed
no. 115,817—june 5, 2020

FACTS: State charged Brown with attempted second-degree intentional murder. District court instructed jury on that charge and the lesser offense of attempted voluntary manslaughter. Verdict form returned by the jury, however, found “the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No. 7,” an instruction that referred to the correct crime of attempted voluntary manslaughter. This verdict inconsistency was not caught until sentencing, well after jury was discharged. District court sentenced Brown for the instructed crime, attempted voluntary manslaughter. Brown appealed. In unpublished opinion, Court of Appeals reversed and remanded for a new trial on that count, holding the written language of the verdict controlled and district court was powerless to deviate from its literal meaning. Panel in a strikingly similar case held the district court could reasonably interpret the verdict in light of the record. State v. Rice, (2011)(unpublished opinion). State’s petition for review granted to resolve this panel split.

ISSUE: Ambiguous verdict

HELD: Based on Kansas caselaw and persuasive decisions from other jurisdictions, general approach in Rice is correct. Lower court’s decision is reversed with caution. An ambiguous verdict can be reasonably interpreted in light of the charging document, jury instructions, and record as a whole to determine and give effect to jury’s intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instruction. The strong presumption in favor of the literal text of the jury verdict as the surest guide to jury’s intentions can only be overcome when the record as a whole clearly demonstrates a different intent and district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. An appellate court’s review of a district court’s application of the surplusage rule is de novo. In this case, district court did not err when it discarded the “in-“ prefix from the verdict form as mere surplusage.

STATUTE: K.S.A. 22-3421

criminal procedure—evidence—motions
state v. hachmeister
shawnee district court—affirmed
no. 114,796—june 5, 2020

FACTS: Hachmeister was convicted of premeditated murder for killing his mother. On appeal he claimed the district court abused its discretion by admitting evidence under K.S.A. 60-455 of mother thinking that Hachmeister had stolen her wedding ring, and of child pornography found on Hachmeister’s computer and the charges associated with that possession.  He also claimed eight instances of error during prosecutor’s closing argument.

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

HELD: No error in district court’s admission of the 60-455 evidence. Probative value of the wedding ring evidence substantially outweighed any prejudice where the confrontation surrounding the missing wedding ring was key evidence of motive. And evidence of child pornography on Hachmeister’s computer and charges for possessing this porn was extremely probative in identifying Hachmeister as author of anonymous letters written by the “real killer.”

            Each allegation of prosecutorial error is examined finding only one error. Prosecutor’s comment that victim “could breathe just fine” exceeded the prosecutor’s ability to draw inferences from the evidence. This error was harmless in light of the trial as a whole and the overwhelming evidence against Hachmeister..

STATUTES: K.S.A. 2019 Supp. 60-455(b)

Tags:  appeals  Cowley District Court  criminal procedure  evidence  juries  motions  Sedgwick District Court  Shawnee District Court  verdicts 

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February 14, 2020 Digests

Posted By Administration, Tuesday, February 18, 2020

Kansas Supreme Court

criminal

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

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

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

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

STATUTES: None

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

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

ISSUE: (1) Sentencing—Multiple Conviction Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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January 10, 2020 Digests

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

Kansas Supreme Court

criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No errors support Lyman’s cumulative error claim.

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

Kansas Court of Appeals

CIVIL

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

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

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

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

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

criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: Appellate jurisdiction

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

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

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

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November 8, 2019 Digests

Posted By Administration, Tuesday, November 12, 2019

Kansas Court of Appeals

 

criminal

constitutional law—criminal procedure—motions—trials —statutes
state v. HAMMERSCHMIDT
Ellis District Court—reversed and remanded
no. 120,016—november 8, 2019

FACTS: Hammerschmidt was charged with a misdemeanor DUI. He filed motion to suppress evidence from the stop, arguing he was not given proper notices before the breath test. He also referenced two pending decisions awaiting rehearing in Kansas Supreme Court. District court granted continuances on its own initiative, citing the pending rehearing decisions. 607 days after a motion to suppress was filed, and 360 days after State v. Nece, 306 Kan. 679 (2017) (Nece II), and State v. Ryce, 306 Kan. 682 (2017) (Ryce II), the district court denied the motion to suppress. Hammerschmidt filed motion to dismiss, alleging violation of speedy trial statute. District court granted that motion and dismissed the complaint. State appealed, arguing in part that K.S.A. 2018 Supp. 22-3402(g) bars dismissal.

ISSUE: Speedy trial statute

HELD: District court erred by dismissing the case on statutory speedy trial grounds. Hammerschmidt first requested delay in the case by filing motion to suppress, and that delay was originally attributable to him. Because the matter was taken under advisement for an unreasonable amount of time and because it was unclear if Hammerschmidt consented to the delay, district court later attributed the delay to the State. Although the delay here was several hundred days, the legislature removed the remedy of dismissal when a district court later attributes delays to the State that were originally attributable to a defendant. K.S.A. 2018 Supp. 22-3402(g). Hammerschmidt did not argue that prosecutorial misconduct precipitated the lengthy delay or that application of K.S.A. 2018 Supp. 22-3402(g) violated his constitutional speedy trial rights, and his statutory speedy trial claim is based on circumstances which expressly forbid dismissal on statutory speedy trial grounds.

STATUTE: K.S.A. 2018 Supp. 22-3402, -3402(b), -3402(g)

constitutional law - criminal procedure - evidence - fourth amendment - motions
state v. fisher
Sedgwick District Court—affirmed
no. 120,031—november 8, 2019

FACTS: Officers entered the house in response to a 911 call report that someone in the house had been shot. No injured person was found, but officers discovered Fisher with drugs in plain view. Fisher was charged with drug offenses. He filed a motion to suppress, claiming the officers lacked a lawful justification to enter the house because they failed to first ask the two women standing outside the house any clarifying questions or whether they were injured. District court denied the motion, finding the clearing of the house to find if someone was hurt or dying was not unreasonable under the circumstances. Fisher was convicted in bench trial on stipulated facts. He filed timely appeal.

ISSUE: Emergency aid exception to warrantless search

HELD: District court did not err in denying the motion to suppress. The emergency aid exception test stated in State v. Neighbors, 299 Kan. 234 (2014), is applied, but an Eleventh Circuit Court of Appeals case is identified as more factually similar to the present case. Officers had authority under the emergency aid exception to act until assured that no one needed assistance. The mere presence of people outside the house where gunshots were reported did not remove the officer’s reasonable basis to search the house for victims. The possibility of someone suffering from a gunshot wound inside necessitated an immediate search.

STATUTES: None

criminal procedure—sentences—statutes
state v. wilmore
shawnee district court—affirmed
no. 120,171—november 8, 2019

FACTS: Wilmore was convicted of two counts of indecent liberties with a child. On appeal, he claimed the district court imposed an illegal sentence in calculating criminal history by using two prior domestic battery cases that had been used in an earlier case to elevate the classification of a third domestic battering conviction to a felony.

ISSUE: Sentencing—criminal history calculation of prior domestic battery charges

HELD: Wilmore’s “double-counting” challenge is rejected for same reasons stated in numerous unpublished court of appeals decisions. District court did not violate K.S.A. 2018 Supp. 21-6810(d) in calculating Wilmore’s criminal history score. Wilmore’s alternative interpretation of the statute is unreasonable. Under court’s longstanding interpretation of K.S.A. 2018 Supp. 21-6819(d), the unambiguous statutory language does not prohibit a district court from aggregating prior domestic battery person misdemeanors to create a person felony for criminal history purposes even when those same domestic battery convictions were used in an earlier case to elevate a domestic battery charge from a misdemeanor to a felony.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6810(d)(10), -6811(a), 22-3504(1)
K.S.A. 2015 Supp. 21-6810(d)(9)

Tags:  Constitutional Law  criminal procedure  Ellis District Court  evidence  Fourth Amendment  motions  Sedgwick District Court  sentences  Shawnee District Court  statutes  trials 

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October 4, 2019 Digests

Posted By Administration, Tuesday, October 8, 2019

Kansas Supreme Court

Criminal

Appeals–Appellate Procedure—Constitutional law—evidence—fourth amendment—statutes
State v. Perkins
Ellis District Court—Affirmed
Court of Appeals—Affirmed
No. 112,449—October 4, 2019

FACTS: Perkins arrested for DUI. He filed motion to suppress results of breath test to which he had consented. District court denied the motion and convicted him on stipulated facts. Perkins appealed. Court of Appeals directed State to show cause why the matter should not be summarily reversed per State v. Nece, 303 Kan. 888 (2016)(Nece I), and State v. Nece, 306 Kan. 679 (2017)(Nece II). Reflecting the State’s redirected arguments, panel affirmed district court, finding the search incident to arrest exception to warrant requirement allows a warrantless breath test; and finding the good-faith exception applied in this case because officer acted with objectively reasonable reliance on statute that was later determined to be unconstitutional. State v. Perkins, 55 Kan.App.2d 372 (2018). Perkins’ petition for review granted.

ISSUES: (1) Preservation Exception; (2) Good-Faith Exception; (3) Search Incident to Arrest

HELD: State’s redirected arguments are considered. Panel’s request that State brief new arguments on appeal is akin to panel raising the issue sua sponte, and parties are to be afforded an opportunity to present their positions to the court. Nece is distinguished. 

District court’s refusal to suppress the result of breath test is affirmed. Good-faith exception to exclusionary rule would save evidence in this case even through Perkins’ consent to search was invalid. Case is analogous to State v. Daniel, 291 Kan. 490 (2010). Here, officer followed existing law and could not reasonably be expected to know that K.S.A. 2012 Supp. 8-1025 would later be found unconstitutional. While provisions that criminalized test refusal were unconstitutional, the entire implied consent statutory scheme was not invalidated. 

No need to discuss alternative argument about search incident to arrest exception.

CONCURRENCE (Luckert, J.): Agrees with application of good-faith exception. Also concurs with majority’s implicit application of U.S. Supreme Court caselaw to § 15 of Kansas Constitution Bill of Rights, but questions whether continued application should be in lockstep with federal caselaw. Open to reexamination of Daniel, but not in this case. Application by federal and state courts of Illinois v. Krull, 480 U.S. 340 (1987), warrants reconsideration of whether its exception leaves Kansas without the protection guaranteed by § 15.

STATUTES: K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B); K.S.A. 22-2501(c)

Kansas Court of Appeals

Civil

ADOPTION
IN RE ADOPTION OF C.S.
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 120,359 – OCTOBER 4, 2019

FACTS: Father and Mother started a relationship in early 2017. By spring of that year, Mother was pregnant. At the time, both she and Father were under age 18, although Father turned 18 about five months into the pregnancy. During her pregnancy, Mother spent a great deal of time with Father at his mother's home, where she received food and clothing, but never any monetary support. Mother claims that she spent so much time with Father because he wanted to control her, and there was evidence that Father was verbally abusive. In an effort to get away from him, Mother moved to Florida to live with extended family for the last part of her pregnancy. C.S. was born in December 2017 and moved to live with potential adoptive parents in March 2018. Mother waived her parental rights but Father would not, so the adoptive parents filed a motion seeking to terminate his parental rights for lack of support. The district court granted the motion and Father appealed.

ISSUES: (1) Evaluation of support given Father's age; (2) sufficiency of the evidence

HELD: The obligation to provide support begins at pregnancy, not birth. That support need not be complete but must be of consequence and reasonable under the circumstances. Father was 18 for most of the relevant look-back period where support was required. And there is no statutory distinction between parents who are minors and parents who are legal adults during the relevant time period where support must be provided. Further, Father does not get credit for support that his mother provided to Mother. The district court's decision to terminate Father's parental rights is supported by clear and convincing evidence.

STATUTES: K.S.A. 2018 Supp. 59-2136(h)(1)(D), -2136(h)(2)(A), -2136(h)(2)(B), -2136(h)(4)

Criminal

Constitutional law - criminal procedure - motions - sentences - statutes
State v. Gales
Edwards District Court—Affirmed
No. 119,302—October 4, 2019

FACTS: Gales convicted of intentional second-degree murder and arson. Sentencing criminal history score included a 1976 California juvenile burglary adjudication that was classified asa person felony. Convictions and sentence affirmed on direct appeal. Gales I (unpublished, rev. denied). Gales filed motion to correct an illegal sentence to challenge classification of the California adjudication. Relying on State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), Court of Appeals vacated Gales’ sentence and remanded to district court to make additional findings under Dickey to determine classification of the California adjudication as a person or nonperson offense. Gales II (unpublished). Thereafter, State v. Dickey, 305 Kan. 217 (2016)(DickeyII) extended Dickey I; State v. Wetrich, 307 Kan. 552 (2018), held that a prior out-of-state crime must have identical or narrower elements that the Kansas offense being compared; and Legislature amended K.S.A. 22-3504. Supplemental briefing ordered. 

ISSUE: (1) Illegal Sentence - Retroactivity and Application of Dickey

HELD: Gales entitled to constitutional rule in Apprendi because his conviction became final after Apprendi was announced. Gales does not get benefit of the identical-or-narrower definition of comparable offenses announced in Wetrich which constituted a change in the law. Under complicated facts in this case, district court’s process for deciding to classify the prior California crime as a person offense violated Apprendi but the decision is affirmed utilizing the classification process set forth in Dickey which does not constitute a change in the law as contemplated by the 2019 amendment to K.S.A. 22-3504.

STATUTES: K.S.A. 22-3504, -3504(c)(amended 2019); K.S.A. 2018 Supp. 21-6811(d), -6811(e)(3); K.S.A. 2015 Supp 21-6811(e)(3); K.S.A. 2000 Supp. 21-4711; K.S.A. 21-3715, -3715(a), -3715(b), -3715(c), -4711(d), -6811(e)(3), 22-3504, -3504(c)

appeals—constitutional law—criminal procedure—trials
State v. Williams
Graham District Court—Reversed and remanded
No. 120,099—October 4, 2019

FACTS: Under a deferred prosecution diversion agreement, State would dismiss felony charges if, in part, Williams paid $490 in costs and fees within one year. After 11 months of nonpayment, State moved to rescind the agreement. District court granted the motion and immediately found Williams guilty as charged based on fact stipulations in the diversion agreement. Williams appealed.

ISSUES: (1) Diversion Agreement; (2) Waiver of Right to Jury Trial

HELD: District court’s revocation of the diversion agreement, based on Williams’ admitted lack of payments, was not error.

Issue is reviewed for first time on appeal to prevent denial of a fundamental right. A district court’s failure to comply with requirement to advise a defendant of right to a jury trial on the record requires reversal and remand. Here, no written waiver and the record does not show the district court ever advised Williams about his right to a jury trial. Reversed and remanded to either afford Williams his constitutional right to a trial by jury based on stipulated facts or to allow him to execute a valid waiver of a jury trial.

STATUTE: K.S.A. 22-2911, -3403(1)

Tags:  Edwards District Court  Ellis District Court  Graham District Court  Shawnee District Court 

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September 27, 2019 Digests

Posted By Administrator, Monday, September 30, 2019

Kansas Supreme Court

Attorney Discipline

PUBLISHED CENSURE
IN RE JOSHUA T. MATTHEWS
NO. 120,924—SEPTEMBER 27, 2019

FACTS: After a stipulation was made, a hearing panel found that Matthews violated KRPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(g) (conduct adversely reflecting on lawyer's fitness to practice law), and Supreme Court Rule 211(b) (failure to file answer in a disciplinary proceeding). Matthews failed to satisfy the CLE requirements for the 2017 reporting year. In an attempt to come in to compliance, Matthews enrolled in a day-long program in Missouri. While attending the live programming, Matthews watched on-demand CLE programs over the course of five hours. The affidavits submitted showed that Matthews attended more than eight hours of CLE in one day, which is not permitted by Kansas rules. When questioned, Matthews initially denied watching video on-demand programs while also attending in-person programming. After his inaccuracies were questioned, Matthews self-reported his conduct to the disciplinary administrator.

HEARING PANEL: Matthews stipulated to the rule violations. Matthews had prior rule violations and the panel found dishonest actions after lying about his attendance. Based on the nature of the misconduct, the disciplinary administrator recommended that Matthews receive a public censure. Matthews asked that he be informally admonished.

HELD: The hearing panel's findings of fact and conclusions were accepted. In light of his prior discipline, the court rejected Matthews' request for an informal admonition. The court accepted the disciplinary administrator's recommendation for published censure.

 

ORDER OF SUSPENSION
IN RE KEVIN P. SHEPHERD
NO. 120,875—SEPTEMBER 27, 2019

FACTS: A hearing panel determined that Shepherd violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(a) (safekeeping property), 1.15(d)(1) (preserving client funds), 1.16(a)(1) (withdrawing from representation), 8.1(a) (false statement in connection with disciplinary matter), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Complaints arose regarding Shepherd's conduct after he failed to file an appellate brief, causing the appeal to be dismissed. Despite repeated promises that he would seek to have the appeal reinstated, Shepherd failed to act. Shepherd also had business checks returned for insufficient funds in diversion cases. This prompted an audit of his bank accounts, which revealed irregularities.

HEARING PANEL: The hearing panel found evidence sufficient enough to sustain violations of the KRPC. When considering the appropriate discipline, the panel noted that Shepherd had a history of prior offenses, including one from 2009 which resulted in a three-year suspension of Shepherd's license. There were also substantial mitigating factors present, including mental health struggles which contributed to the misconduct. Shepherd made restitution to his clients and enjoys the support of his local bench and bar. The disciplinary administrator recommended that Shepherd be indefinitely suspended. Shepherd asked that he be placed on probation, and he began working on some of his proposed probationary terms prior to the hearing. The hearing panel determined that Shepherd's dishonest conduct could not be cured by probation. Rather, the hearing panel recommended that Shepherd be suspended for two years, and that he be allowed to apply for reinstatement after one year.

HELD: The hearing panel's findings of fact and conclusions were deemed admitted. At the hearing, citing Shepherd's notable progress, the disciplinary administrator asked that Shepherd be indefinitely suspended but that the suspension be stayed to allow Shepherd to serve a five-year term of probation. The court found that Shepherd's misconduct was too serious to be cured by probation. A majority of the court imposed a two-year suspension, but stipulated that Shepherd should be allowed to seek reinstatement after one year. Other members of the court would impose either a more or less severe punishment.

 

Kansas Court of Appeals

 

Civil

CONSTRUCTION CONTRACTS—LEASES
DRYWALL SYSTEMS, INC V. A. ARNOLD OF KANSAS CITY
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,091—SEPTEMBER 27, 2019

FACTS: A. Arnold entered a five-year lease for part of a building which was owned by BMJ. There were other tenants using part of the building, so before A. Arnold could use the space, it needed to have a partition wall built. Drywall Systems, Inc. submitted the winning bid for the project. Drywall completed the work, but A. Arnold did not pay and Drywall sued both A. Arnold and BMJ for breach of contract, unjust enrichment, and a mechanic's lien foreclosure. The district court found for Drywall on the breach of contract action. But it refused to award prejudgment interest and attorney fees because BMJ, the property owner, was not a party to the contract and A. Arnold, who was a party, was not an "owner" as defined by the Kansas Fairness in Private Construction Contract Act. Drywall appealed.

ISSUE: (1) Liability under the Act

HELD: Drywall did prevail on a contract claim under the Act. But the clear and unambiguous language in the Act shows that only an "owner" can be liable for prejudgment interest and attorney fees. It is undisputed that A. Arnold is not the owner because it only holds a leasehold interest in the property. Without status as an owner, Drywall cannot recover from A. Arnold.

STATUTE: K.S.A. 2018 Supp. 16-1802(e), -1803, -1803(d), -1803(e), -1804, -1805, -1806

 

VEHICLE LICENSURE
CENTRAL RV V. KANSAS DEPARTMENT OF REVENUE
FRANKLIN DISTRICT COURT—AFFIRMED
NO. 119,744—SEPTEMBER 27, 2019

FACTS: A travel trailer insured by Safeco Insurance was damaged in an accident in Oregon. Safeco obtained a salvage title from the State of Oregon which carried a "TOTALED" designation. Central RV bought the trailer from Safeco. When Central RV titled the vehicle with the State of Kansas it received a rebuilt salvage title. Central RV asked the Department of Revenue to reconsider and give it a clean title. The Department of Revenue refused, so Central RV filed suit hoping to force a title change. The district court sided with the Department of Revenue, and Central RV appealed.

ISSUE: (1) The type of title required

HELD: The trailer met the Kansas statutory definition for a rebuilt salvage vehicle that should receive a rebuilt salvage title. The fact that the salvage status was issued by another state does not keep the trailer from being a rebuilt salvage vehicle. In fact, the statute exists to prevent people from title washing vehicles which were totaled in other states.

STATUTE: K.S.A. 2018 Supp. 8-127, -135, -126(ll), -126(mm), -126(qq), -126(rr), -197, -197(b)(2), -197(b)(5)

 

DIVORCE—MILITARY RETIREMENT
IN RE MARRIAGE OF THRAILKILL
GRAHAM DISTRICT COURT—AFFIRMED IN PART AND DISMISSED IN PART
NO. 118,246—SEPTEMBER 27, 2019

FACTS: Doug and Denise Thrailkill were both in the military, although Doug continued his career until he retired as a commissioned officer. Because of the length of his service, Doug began receiving retirement pay as soon as he retired. Doug worked a civilian job for a bit, but ultimately quit and received military disability. Denise filed for divorce in 2016. The proceedings were bifurcated and the decree was handed down before the property settlement was complete. After a hearing on property settlement issues, the district court equally divided the parties' retirement pay. The court awarded maintenance to Denise and ordered Doug to pay half of the balance on a loan that was taken out to help finance their son's education. The district court also had to address Doug's Survivor Benefit Plan, which involved a survivor benefit for a spouse after a military member's death. Doug appealed.

ISSUES: (1) Authority to rule on Survivor Benefit Plan, (2) calculation of maintenance and child support, (3) Doug's obligation on the student loan, (4) postjudgment issues

HELD: After a 1986 statutory amendment, a divorce court can order a service member to retain his or her former spouse as the Survivor Benefit Plan beneficiary, even after divorce. Because Doug was married to Denise when he began receiving retirement pay, Denise was included in spouse coverage. And now, because of the divorce, Doug can elect former-spouse coverage for Denise. There is no statutory limitation to a state divorce court's ability to make orders regarding former-spouse coverage. The district court must consider all income when making maintenance and child support decisions. A portion of each party's retirement pay must be considered as income. In addition, the maintenance award served to equalize the parties' income for the next eight years. Denise borrowed $22,000 towards her son's educational expenses. At the time of the hearing on financial matters, the balance was $11,000. The student loan was correctly treated as a marital debt. The district court correctly ordered each party to pay half of the remaining balance. Doug cannot appeal issues involving postjudgment orders because they were not mentioned in the notice of appeal, and the court does not have jurisdiction to consider them.

STATUTES: 10 U.S.C. § 1447, § 1448, § 1450, § 1450(f)(3); K.S.A. 2018 Supp. 23-2801(a), -2802(b), -2902(a), -3001

 

MEDICAL MALPRACTICE
BROWN V. TROBOUGH
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,501—SEPTEMBER 27, 2019

FACTS: Katy Brown went into labor in September 2015. Her labor was managed by Dr. Schuchmann, a resident. Dr. Trobough was the on-call physician; as such, he was also Dr. Schuchmann's faculty advisor and supervisor. During Katy's labor process, even though he was informed that Katy had a high risk pregnancy, Dr. Trobough left the hospital and was updated by Dr. Schuchmann via text message. Dr. Trobough eventually arrived at the hospital 10 minutes before Katy's son, Carter, was born. Unfortunately, Carter was critically ill when born and suffered from lack of oxygen. Dr. Trobough later texted another physician that during labor, nurses were only monitoring Katy's heart rate and not Carter's, missing the fact that he was in distress. Katy and her husband sued Drs. Schuchmann and Trobough and the hospital for negligence. The hospital and Dr. Schuchmann settled. After that was done, the Browns were given permission to amend their petition to include as defendants Dr. Teply, Lincoln Center, the medical practice, and the Kansas University Medical Education Foundation. Dr. Teply was the training site director for KU Medical School at Lincoln Center. The district court granted Lincoln Center's motion to dismiss, finding that it was barred as derivative by K.S.A. 40-3403(h). Dr. Teply's motion for dismissal was similarly granted after the district court found that Dr. Teply had no independent duty to Carter.

ISSUE: (1) Whether claim is barred by K.S.A. 40-3403(h)

HELD: The plain language of K.S.A. 40-3403(h) bars Brown's claim against Dr. Teply. The statute applies regardless of whether the plaintiffs seek to apply a corporate negligence theory. Any claim against Dr. Teply, even if it seeks to hold him liable for his failure to enforce the resident supervision rule, is derivative of the other doctors' alleged negligence. Had Drs. Schuchmann and Trobough not allegedly injured Carter there would be no claim against Dr. Teply. As a result, K.S.A. 40-3403(h) prevents Brown from bringing suit against Dr. Teply.

STATUTE: K.S.A. 40-3401(f), -3403(a), -3403(h)

 

criminal

constitutional law—criminal law—JUveniles—sentences—statutes
state v. N.R.
reno district court—affirmed
NO. 119,796—september 27, 2019

FACTS: 14-yr.-old N.R. was adjudicated a juvenile offender in 2006. Magistrate granted probation and ordered registration under Kansas Offender Registration Act (KORA) as a sex offender. Prior to the 5-year registration period expiring, the legislature amended KORA to require lifetime registration for N.R.’s age and offense. N.R. was charged in 2017 of failing to register. He moved to dismiss, arguing lifetime registration violated ex post facto and cruel and unusual constitutional protections. District court denied the motion based on controlling Kansas Supreme Court precedent regarding lifetime registration requirements. N.R. appealed, arguing KORA’s lifetime registration requirement as a sex offender is unconstitutional as applied to juveniles. He also argued his sentence was illegal because the magistrate judge lacked authority to order him to register.

ISSUES: (1) Constitutionality of registration requirement—juveniles, (2) KORA registration ordered by magistrate

HELD: District court did not err in finding the registration requirement constitutional as applied to juveniles. Kansas courts have repeatedly held that KORA offender registration is not punishment, and that a registration requirement is not part of a defendant’s criminal sentence. State v. Dull, 302 Kan. 32 (2015), is distinguished by the mandatory postrelase supervision ordered in that case being part of the juvenile’s sentence. N.R. showed no reason why registration should be considered punishment for juveniles. Test in State v. Petersen-Beard, 304 Kan. 192 (2016), is summarized and applied finding no showing the outcome would have been different had it involved a juvenile instead of an adult.

            KORA itself, rather than a court order, imposes the duty to register upon sex offenders. Any lack of magistrate judge’s authority is immaterial because the duty to register arises by statute, falls on N.R., and is not part of N.R.’s sentence.

STATUTES: K.S.A. 2018 Supp. 20-302b(a)(6), 22-4902(b), -4906(h), 38-2356(b); K.S.A. 2006 Supp. 22-4906(h)(1); K.S.A. 2005 Supp. 21-3502(a)(2), -3502(c); K.S.A. 22-4901 et seq.,

 

appeals—constitutional law—criminal law—first amendment—statutes—torts
state v. smith
douglas district court—reversed and sentence vacated
no. 119,919—september 27, 2019

FACTS: Perez lived across the street from Smith who accused Perez of sexual misconduct with Smith’s child. District court denied Smith a final protection from stalking (PFS) order against Perez, but granted Perez a final PFS order against Smith that included a special prohibition against Smith making any direct or indirect disparaging statements in public regarding Perez being a child molester. While entering her residence, Smith told her husband who was standing in their driveway to come inside away from the pedophile. Perez and family heard and recorded that statement. Smith charged with violating the PFS order. She moved to dismiss, arguing the PFS order was an unconstitutional, content-based restriction on her free-speech rights, and that criminal prosecution under K.S.A. 2017 Supp.21-5924 for violating the order was unconstitutional as applied to her. She appealed on the same constitutional claims, and also argued insufficient evidence showed that her statement was made in public. State asserts the constitutional claim is an impermissible collateral attack on the earlier PFS order, and State questions whether the PFS order is a content-based restriction.

ISSUES: (1) Sufficiency of the evidence, (2) procedural bar to constitutional question, (3) First Amendment, (4) content-based restriction

HELD: Sufficient evidence shows that Smith made the statement in public. Her Fourth Amendment argument concerning privacy of curtilage of her home is not applicable. Even with a curtilage analysis, her words carried beyond that curtilage and invaded curtilage of Perez’ house.

            Smith’s appeal is not procedurally barred. She is appealing a criminal judgment with a statutory right to appeal, and her free speech issue is now ripe. Even if she could have raised her First Amendment objections when the district court issued the PFS order, there is no bar to her raising them now.

            Smith’s speech warrants First Amendment protection. State’s invocation of the defamation category of speech that may be restricted fails. Cases involving libel are distinguished from isolated slander in this case. Even if slanderous statement could be assumed as defamatory speech, no evidence that Smith’s statement was in fact defamatory. No showing that Smith’s statement was knowingly false, and that Smith’s statement caused any harm to Perez’ reputation.

            The PFS order in this case is a content-based prior restraint on speech, thus presumptively unconstitutional. State fails to show the PFS order serves a compelling state interest. Purpose of Kansas stalking statute is to protect innocent citizens from threatening conduct that subjects them to a reasonable fear of physical harm. The statutes expressly excludes constitutionally protected activity from its definition and does not reflect any State interest in preventing slander. Under circumstances in this case, the PFS order, as applied solely to speech which did not subject a person to a reasonable fear of physical harm, was an improper prior restraint of Smith’s  constitutional right to freedom of speech. Conviction is reversed and sentence vacated.

STATUTES: K.S.A. 2018 Supp. 21-5427, 22-3602(a), 60-31a02, -31a02(d). -31a02(d)(1), -31a02(d)(2), -31a05(a); K.S.A. 2017 Supp. 21-5924

Tags:  1st Amendment  attorney discipline  Douglas District Court  Franklin District Court  Graham District Court  Johnson District Court  KORA Lifetime Registration for Juvenile Offender  medical malpractice  military retirement in divorce  Reno District Court  Shawnee District Court 

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September 6, 2019 Digests

Posted By Administration, Tuesday, September 10, 2019

Kansas Supreme Court

CIVIL

AMANUENSIS—ESTATES
IN RE ESTATE OF MOORE
COWLEY DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED

NO. 115,628—SEPTEMBER 6, 2019

FACTS: Roxie Moore owned close to 900 acres of land throughout the state. Over the years, she used portions of that land as security to help her son, Harvey. Not only did Roxie use land as collateral for Harvey, but Harvey took over $100,000 from Roxie through the years. Roxie's health began to decline, and she named Maureen—Harvey's ex-wife—as her durable power of attorney. Around this time, Roxie hired counsel to protect the rest of her property from Harvey. She wanted a transfer-on-death deed that would assign the land to Harvey's children through Maureen. After the deed was prepared and Roxie read it, she asked Maureen to sign the deed for her, with a note that she was the power of attorney. Roxie died in 2009, and Maureen executed a warranty deed transferring property to Harvey's sons, as Roxie wished. Harvey opened a probate proceeding seeking a determination of descent of the real estate. The sons responded that certain real estate had passed to them under the transfer-on-death deed. The district court granted summary judgment to the sons, finding that Maureen acted as amanuensis in signing the new deed for Roxie. The court of appeals affirmed, and the Supreme Court granted Harvey's petition for review.

ISSUES: (1) Signature by amanuensis; (2) undue influence

HELD: There is no statutory prohibition against signing a deed via an amanuensis. The amanuensis signs with the same authority and legal effect as if the signature were physically provided by the principal directing the signature. The district court properly found, by a preponderance of the evidence, that Maureen fulfilled Roxie's request to sign the deed on her behalf. That is a valid exercise of an amanuensis. When signing the deed, Maureen directed the property to herself and then on to her sons. A self-interested amanuensis presents a danger. But in this case, clear and convincing evidence rebutted any presumption of undue influence, and there was no evidence that Roxie was not competent to execute the deed.

CONCURRENCE (Stegall, J.): Kansas law clearly allows an amanuensis to sign a deed. But the majority improperly conflates amanuensis with an owner's agent. The use of an agent would not be a binding signature.

DISSENT (Johnson, J.): It is not permissible to skip the formalities associated with creating a property deed.

STATUTES: K.S.A. 2018 Supp. 58-654(f)(6); K.S.A. 58-2209, 59-605(b), -3501, -3501(a), -3502

NATURAL GAS
NORTHERN NATURAL GAS V. ONEOK
PRATT DISTRICT COURT—REVERSED AND REMANDED
NO. 118,239—SEPTEMBER 6, 2019

FACTS: Northern Natural Gas maintains an underground natural gas storage facility. It holds certifications which allow it to inject and store previously extracted natural gas, which allows Northern to sell it when there are favorable market conditions. In 2008, Northern filed suit against two producers, claiming they artificially created conditions which caused Northern's storage gas to migrate beyond the storage field's certified boundaries. That suit ultimately ended up with FERC issuing a certificate on June 2, 2010, authorizing Northern to expand its field boundaries, extending its buffer zone to protect migrating gas from capture. Back in district court, Northern's motion for reconsideration, which asked for different treatment for post-FERC decision gas capture, was denied. Northern appealed and the case was transferred to the Kansas Supreme Court after docketing.

ISSUE: (1) Right to capture storage gas after June 2, 2019

HELD: Northern became exempt from common-law rule of capture after June 2, 2010, when it received the FERC certificate authorizing additional condemnation. The district court erred when it ruled that K.S.A. 55-1210 superseded case law to the contrary. This caselaw is not an unconstitutional taking of property. The rule of capture does not vest title, it simple recognizes an ability to produce.

DISSENT (Johnson, J., joined by Stegall, J.): Neither a court nor a federal agency can take a property interest from a Kansas landowner.

DISSENT (Stegall, J.): In addition to agreeing with Justice Johnson, the prior caselaw relied on by the majority is wrong and should be reversed.

STATUTE: K.S.A. 55-1201, -1202, -1204, -1205, -1210, -1210(a), -1210(c)

APPELLATE PROCEDURE—RES JUDICATA
IN RE CARE AND TREATMENT OF SIGLER
BARTON DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 118,914—SEPTEMBER 6, 2019

FACTS: Sigler was convicted of aggravated criminal sodomy and indecent solicitation of a child. Before he was released from prison, the State petitioned that he be committed as a sexually violent predator. That case went to trial in 2015, but after a hearing the district court determined that Sigler did not meet all of the criteria to be indefinitely committed. Sigler was released, but was returned to prison shortly thereafter for violating the terms of his parole. As it did before, the State filed a petition before Sigler's release asking that he be committed as a sexually violent predator. Sigler asked that the petition be denied on grounds of res judicata or collateral estoppel. The motion was denied and a jury determined that Sigler was a sexually violent predator. Sigler appealed and the court of appeals affirmed the jury's finding. Sigler's petition for review was granted.

ISSUES: (1) Existence of a material change in circumstances; (2) denial of motion for mistrial

HELD: Sigler failed to preserve for appeal any argument involving collateral estoppel. Under a res judicata analysis, the State presented evidence of a material change in Sigler's mental state and risk assessment. Specifically, the State proved that Sigler has serious difficulty controlling his dangerous behavior. Statements made about Sigler at trial were unquestionably wrong. But any prejudice which arose from those statements was cured, and the district court did not err by denying a motion for mistrial.

DISSENT (Johnson, J.): The Sexually Violent Predator Act should be interpreted to permit the State only one opportunity to seek involuntary civil commitment. In addition, viewing pornography or sexually explicit websites cannot be grounds for commitment.

STATUTE: K.S.A. 59-29a03, -29a03(a)(1)

 

EMPLOYMENT LAW—RETALIATORY JOB ACTION
HILL V. STATE
SHAWNEE DISTRICT COURT—AFFIRMED IN PART
AND REVERSED IN PART, CASE REMANDED
COURT OF APPEALS—
AFFIRMED IN PART AND REVERSED IN PART
NO. 114,403—SEPTEMBER 6, 2019

FACTS: Hill was hired by the Kansas Highway Patrol as a trooper. He was assigned to Troop H in southeastern Kansas. Hill was fired in November 2011 after he was involved in a dispute with a supervisor who was investigating a civilian complaint against Hill. The Kansas Civil Service Board reversed the termination but found that Hill deserved discipline and sanctioned him with a one-year suspension without pay. KHP abided by the decision and treated Hill as a new hire who could be assigned wherever staffing needs were greatest. At that time, Finney County in southwestern Kansas had the greatest need for troopers. KHP admitted that it was unusual to involuntarily reassign a trooper to a different geographic area. Hill asked the KCSB to prevent the transfer but the Board denied his request. Hill then asked KHP for a hardship assignment so that he could care for his mother, who had serious health problems. Hill reported to Finney County but quickly asked for reassignment back to his former duty station. Hill sued both KHP and his supervisor in district court, claiming that the transfer was retaliatory and in violation of public policy. In the time since the suit was filed, Hill received a transfer and a promotion. The district court granted the defendants' motion for summary judgment, finding that Hill did not establish prima facie proof of retaliation. The court of appeals affirmed that decision. The Kansas Supreme Court granted Hill's petition for review.

ISSUES: (1) Jurisdiction; (2) sovereign immunity; (3) summary judgment

HELD: Torts committed by a state agency fall outside of the Kansas Judicial Review Act and the Civil Service Act does not provide administrative review for wrongful transfers or job assignments. This gives the court jurisdiction to hear Hill's case. There are exceptions to Kansas's employment-at-will doctrine. Specifically, there is an anti-retaliation public policy. Some employee retaliations which fall short of termination or demotion may give rise to an actionable tort, as long as those retaliations are sufficiently coercive to undermine public policy. The Kansas Tort Claims Act does not immunize the defendants from liability for such a retaliation claim. Hill presented a prima facie case of job retaliation, which should have prompted the district court to ask KHP to provide a nondiscriminatory reason for the transfer.

DISSENT (Stegall, J., joined by Luckert, J.): The majority read the KTCA too broadly. The KTCA provides immunity to KHP.

STATUTES: K.S.A. 2018 Supp. 75-2929d(a)(1), -2949(g). -6103(a), -6104, -6104(h), -6104(n), -6104(s); K.S.A. 75-2947(a), -2957

Criminal

appellate procedure—criminal procedure—evidence—
prosecutors—sentences—statutes—witnesses
State v. Ballou
Miami District Court—Affirmed in part and vacated in part
Court of Appeals—affirmed
No. 116,252—september 6, 2019

FACTS: Ballou was convicted of rape and aggravated indecent liberties with a child. On appeal, Ballou claimed prosecutor erred in closing argument by expanding time frame when crime allegedly occurred. He also claimed district court erred in admitting evidence of videotaped interview of child victim without ensuring compliance with K.S.A. 2018 Supp. 60-456(b) for scientific evidence of Finding Words/ChildFirst protocol, or conducting a taint hearing to determine reliability; by admitting evidence of alleged prior sexual misconduct by Ballou; and in not ordering a psychological evaluation of child victim. Court of appeals affirmed the convictions and sentence, assuming in part the prosecutor misstated the law defining “on or about” the date of the alleged crime, but finding error was harmless. Review granted on Ballou’s issues and on State’s conditional cross-petition for holding that prosecutor’s comments were not a misstatement of law. Sentencing error considered sua sponte.    

ISSUES: (1) Prosecutorial error; (2) evidence—child interview and taint hearing; (3) independent psychological examination; (4) cumulative error; (5) sentencing error

HELD: No need to reach legal arguments about meaning of “on or about” in this case because no factual support for prosecutor’s suggestion that the charged crimes occurred during four-and-a-half months prior to the alleged date of the crime. Any time discrepancy in time frame related to the possibility the crimes occurred after the date alleged. Prosecutor’s argument outside the evidence was error, but State meet its Chapman burden of establishing no reasonable possibility this error contributed to the verdict.

K.S.A. 2018 Supp. 60-456(b) does not apply to the child’s interview, and district court did not err in admitting the interview. Expert testimony is not necessarily required as a foundation to introducing a child witness’ interview into evidence and no specific formula or protocol need be followed when conducting an interview. Here, examiner never offered an opinion or otherwise testified to anything based on her scientific, technical, or other specialized knowledge. She simply relayed the factual circumstances under which the statement was taken, and did not offer an opinion about the reliability of the child’s statement or whether she found the statement believable or truthful. Ballou failed to preserve his argument about the need for a taint hearing.

Ballou failed to preserve his pretrial objection to the admission of prior acts of sexual misconduct. Panel’s conclusion on this point is affirmed, but disagreement stated with panel’s alternative finding—that Ballou waived the argument because after the State admitted the complained-of-evidence Ballou used it to discredit the child’s testimony—and with panel’s cite of State v. Berriozabal, 291 Kan. 568 (2010), for support.

No abuse of district court’s discretion in denying Ballou’s pretrial motion for an independent psychological examination of the child victim. District court applied the appropriate factors in State v. Gregg, 226 Kan. 481 (1979), for determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness.

The single, nonreversible prosecutorial error found in this case does not establish reversible cumulative error.

Off-grid lifetime sentences are to be followed by parole, not lifetime postrelease supervision as ordered in this case. That portion of the district court’s judgment is vacated.

STATUTES: K.S.A. 2018 Supp. 60-455(d), -456, -456(a), -456(b); K.S.A. 2013 Supp. 21-5503(b)(2), -5506(c)(3), -6627(a)(1)(B), -6627(a)(1)(C), 22-3717(b)(5); and K.S.A. 22-3504, 60-401, -401(a), -404, -407, -417, -419

constitutional law—criminal procedure—judges—juries—jury instructions
State v. Boothby
Stevens district court—affirmed
court of appeals—affirmed
No. 116,505—september 6, 2019

FACTS: Jury convicted Boothby of aggravated assault and criminal threat for pointing a gun at victim and threatening to come back when victim was alone. On appeal, Boothby claimed reversible judicial misconduct during voir dire by district court judge’s suggestion to one venire panel that Boothby was charged with aggravated battery in a former case. Citing State v. Smith-Parker, 301 Kan. 132 (2014), as recognizing a right to jury nullification, Boothby also claimed district court erred when it instructed jury that its verdict “must be founded entirely upon the evidence admitted and the law as given in these instructions.” Court of appeals affirmed in unpublished opinion, finding Boothby—as the party alleging judicial misconduct—failed to meet his burden of showing prejudice. Panel also found the challenged jury instruction was legally correct, and in the alternative, the instruction was not clearly erroneous. Boothby’s petition for review granted.

ISSUES: (1) Judicial comment error; (2) jury instruction—verdict

HELD: From now on, an erroneous judicial comment made in front of the jury that is not a jury

instruction or legal ruling will be reviewed as "judicial comment error" under the constitutional harmlessness test in Chapman v. California, 386 U.S. 18 (1967). Existing precedent concerning structural error or other kinds of error traditionally labeled “judicial misconduct” remains undisturbed. State’s invitation to adopt the federal plain error standard is declined. Judicial comment error will be analyzed in two steps: error and prejudice, with the prejudice step reviewed under the Chapman constitutional harmlessness test. Thus, judicial comment error is reversible unless the State, as the party benefitting from judicial comment error, proves beyond a reasonable doubt that the error did not affect the outcome of trial in light of the entire record. Judicial comment error is reviewable on appeal despite the lack of a contemporaneous objection at trial. Here, State met its burden to prove the judicial comment error was harmless.

Instruction challenged in this case is legally correct, and a district court does not err when it tells a jury to follow the law. Smith-Parker did not establish a “right” to jury nullification, and the Court declines to recognize such a right in this case. Also, the reasonable doubt instruction in Smith-Parker is distinguishable from the instruction Boothby challenges.

STATUTES: K.S.A. 2018 Supp. 22-3414(3); K.S.A. 22-3403(3), 60-455

criminal procedure—evidence
state v. howling
pratt district court—affirmed
court of appeals—affirmed
No. 116,524—september 6, 2019

FACTS: Howling was convicted of aggravated criminal sodomy. On appeal, he claimed district court erred in admitting a videotape of the forensic interview of the child victim, arguing this should have been treated as expert testimony. He also challenged sufficiency of the evidence supporting his conviction, citing the victim’s inconsistent statements and caregivers’ failure to observe any injury for more than 24 hours while the child was in their care. Court of Appeals affirmed in unpublished opinion, finding a video of a forensic interview is not expert testimony, and the evidence was relevant and admissible. It further found sufficient evidence supported the aggravated criminal sodomy conviction. Howling’s petition for review on both issues granted.

ISSUES: (1) Evidence—forensic interview of child; (2) sufficiency of the evidence

HELD: Trial court did not err in admitting the interview. As explained in State v. Ballou, 310 Kan. __ (decided this same day), a forensic interview standing alone is not expert testimony. K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic interview of an alleged child sexual abuse victim that does not include opinions or other testimony based on scientific, technical, or other specialized knowledge. Whether to adopt a taint hearing process in Kansas is not considered. No separate taint hearing was required in this case where district court performed its gatekeeping function to consider the reliability of the child’s statements resulting from the forensic interview.

Under facts in this case, sufficient evidence supported Howling’s aggravated criminal sodomy conviction.  

STATUTE: K.S.A. 2018 Supp. 60-456, -456(b)

 

constitutional law—criminal law—criminal procedure—
jury instructions—sentences
state v. Perez-Medina
ford district court—affirmed
court of appeals—affirmed
No. 114,589—september 6, 2019

FACTS: A jury convicted Perez-Median as charged of aggravated battery for knowingly causing great bodily harm or disfigurement by using a knife to cut victim’s face. District court refused to give any recklessness-based lesser included crime instructions because evidence justified knowing rather than reckless actions. Sentence included registration under Kansas Offender Registration Act (KORA) based on sentencing court’s finding that a deadly weapon was used. Perez-Medina appealed, claiming in part the jury should have been instructed on reckless aggravated battery. He also claimed the sentencing court’s finding of a deadly weapon to impose KORA registration violated Apprendi. Court of Appeals affirmed in unpublished opinion, finding no clear error was shown by omission of instructions on lesser included crimes where such instructions were legally but not factually appropriate. Review granted on jury instruction challenge, and on challenge to KORA registration.

ISSUES: (1) Jury instructions; (2) KORA registration

HELD: Clear error standard does not apply because Perez-Median adequately preserved this issue for appellate review. Even assuming district court erred in refusing to instruct on reckless aggravated battery offenses, the error is not reversible because no evidence supported a reckless act by the defendant.

Perez-Medina must register as a violent offender. He provided no evidence or argument to establish the punitive effects of registration under KORA. Under State v. Petersen-Beard, 304 Kan 192, cert. denied 138 S.Ct. 2673 (2018), the registration requirement is upheld by an equally-divided court of six justices.

CONCURRENCE AND DISSENT (Johnson, J.)(joined by Beier and Rosen, JJ.): Agrees with majority’s handling of the lesser included offenses, but would vacate the registration requirement. He continues his vigorous dissent on majority’s holding that KORA registration is not punishment.

STATUTES:  K.S.A. 2018 Supp. 21-5202(b), -5202(c), -5202(h), -5202(i), 22-3414(3), -4901 et seq.; K.S.A. 2014 Supp. 21-5413(b)(1)(A), -5413(b)(1)(B), -5413(b)(2)(A), 5413(b)(2)(B); and K.S.A. 60-404

 

appeals—appellate procedure—attorney and client—criminal law—
criminal procedure—jury instructions—sentences—statutes
state v. toothman
saline district court—affirmed
court of appeals—affirmed in part and reversed in part
No. 114,944—september 6, 2019

FACTS: A jury convicted Toothman of seven sex crimes for rape and sodomy of the victim over a two year period. District court imposed sentences for primary offenses of aggravated criminal sodomy and rape, and set aside convictions on alternative charges of criminal sodomy, aggravated indecent liberties with a child, and aggravated incest. Toothman appealed claiming district court: (1) committed clear error by failing to instruct jury that criminal sodomy is a lesser included crime of aggravated criminal sodomy; (2) abused its discretion by failing to adequately inquire about a potential conflict between Toothman and his trial counsel before sentencing; and (3) committed clear error by instructing jury that its verdict “must be founded entirely upon the evidence admitted and the law as given in these instructions.” In unpublished opinion on summary calendar, court of appeals sua sponte reversed two convictions and remanded with directions to resentence Toothman for aggravated incest as the more specific crime because Toothman had a familial relationship with the victim. Review granted on Toothman’s petition and on State’s cross-petition from panel’s reversal of the two convictions with reinstatement of lesser alternative counts of aggravated incest in their place.

ISSUES: (1) Panel’s sua sponte reversal of convictions; (2) jury instructions—criminal sodomy; (3) defendant’s dissatisfaction with attorney; (4) jury instruction—verdict

HELD: Court of appeals panel ignored cautionary directive that when an appellate court raises an issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue to present their positions to the appellate court before the issue is finally decided. Here, panel erred when it sua sponte reversed Toothman’s convictions for aggravated criminal sodomy and rape by relying on caselaw and statute at issue prior to Legislature’s 1993 change of aggravated incest statute to effectively overrule State v. Williams, 250 Kan. 730 (1992). Aggravated incest, as now defined, is not a more specific crime than aggravated criminal sodomy or rape. Panel is reversed on this ground. Toothman’s convictions for aggravated criminal sodomy and rape are affirmed.

District court did not err in listing criminal sodomy as an alternative offense to aggravated criminal sodomy, rather than as a lesser included offense as Toothman requested.   

No dispute that the letter Toothman submitted the day of sentencing triggered the district court’s duty to inquire, but under facts in this case, district court adequately inquired into Toothman’s dissatisfaction with his attorney.

Jury instruction challenged in this case is identical to that challenged in State v. Boothby, 310 Kan. __ (decided this same day). Following Boothby, the instruction is legally correct, and a district court does not err when it tells a jury to follow the law.

STATUTES: K.S.A. 2018 Supp. 21-5109(b), -5604(b)(2)(A), 22-3414(3); K.S.A. 2011 Supp. 21-5503(a)(1)(A), -5504(a)(3), -5504(b)(3)(A), -5506(b)(1), -5604(b)(2)(A); K.S.A. 1991 Supp. 21-3501(4), -3503; K.S.A. 21-3107(2), -3107(2)(b); K.S.A. 21-3603, -3603(2)(a) (Ensley 1988); K.S.A. 21-3603(1) (Ensley 1981); and K.S.A. 21-3603(1) (Weeks 1974); K.S.

Court of Appeals

CIVIL

NAME CHANGES
IN RE PETITION OF CLARK
NORTON DISTRICT COURT—REVERSED AND REMANDED
NO. 121,034—SEPTEMBER 6, 2019

FACTS: While serving a sentence at the Norton Correctional Facility, Clark filed a petition to change his last name. He wanted to re-take the name of his biological father to carry on that legacy. After a phone conference, the district court denied Clark's petition, finding that the name change was precluded due to Clark's status as an inmate. Clark appealed.

ISSUE: (1) Ability to change name while incarcerated

HELD: Name changes are governed by statute. Petitioners need not provide a compelling reason for the change, as long as the judge is satisfied as to the truth of the allegations made in the petition. There is no regulation or statute which would bar an inmate from obtaining a name change. Regulations do require that the inmate continue to respond to the name that was used at the time of conviction, and records will continue to reflect the original name. But nothing precludes the actual name change. Further, there is no requirement that a petitioning inmate show a compelling reason for the name change.

STATUTES: K.S.A. 2018 Supp. 22-4903, -4905(i), 23-2506, -2716; K.S.A. 60-1401, -1402(a), -1402(b), -1402(c), 77-425

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