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January 12, 2018 Digests

Posted By Administration, Tuesday, January 16, 2018

Kansas Supreme Court

Attorney Discipline

ONE YEAR SUSPENSION
IN THE MATTER OF DANIEL HART PHILLIPS
NO. 118,210—JANUARY 12, 2018

FACTS: A hearing panel determined that Phillips violated KRPC 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law). The issue arose after Phillips made inappropriate sexual remarks to a prospective client. During the investigation, Phillips admitted to making the comments, apologized, and blamed his prior history of substance abuse as a precipitating factor.

HEARING PANEL: At the hearing, the panel concluded that Phillips was not fully honest when answering questions from the disciplinary administrator's office. After considering the other aggravating and mitigating factors, and the Disciplinary Administrator's conditional recommendation of probation, the hearing panel recommended that Phillips be suspended for one year with a two-year term of probation starting after 30 days.

HELD: The hearing panel's findings were deemed admitted. At oral argument, the Deputy Disciplinary Administrator introduced evidence to show that Phillips was not in compliance with his proposed probation plan. Because of this evidence, the court ruled that probation was not an appropriate disposition. The court suspended Phillips for one year and refused probation.

criminal

criminal law—fraud and deceit—statutes
state v. ward
johnson district court—reversed; court of appeals—affirmed
No. 111,640—january 12, 2018

FACTS: As a loan to All Construction Guaranteed Roofing and Restoration (ACG), a company formed and operated by Ward and Rhodes, Sweeney wrote a Bank of America check to ACG. Ward added his name as a payee on the check, and deposited it in his personal account at First National Bank. State charged Ward with theft by deception from ACG or Bank of America, and with making false information. On appeal, Wade claimed insufficient evidence supported the theft by deception conviction, and the State proved the crime of forgery rather than making false information. Court of Appeals agreed and reversed both convictions. State v. Ward, 52 Kan.App.2d 663 (2016). State’s petition for review granted.

ISSUES:(1) Theft by deception; (2) making false information

HELD:On facts in this case, insufficient evidence supported Ward’s conviction of theft by deception. No proof that either of the two possible victims named in the charging document and jury instruction was deceived by Ward. Departing from panel’s analysis, Supreme Court finds the theft by deception from Bank of America fails because First National Bank, rather than Bank of America, was deceived by Ward’s actions.

Making false information and forgery statutes are interpreted, with extensive discussion of their statutory history. A defendant’s conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs. Any earlier statement in or impression from State v. Rios, 246 Kan. 517 (1990), and Sate v. Gotti, 273 Kan. 459 (2002), to the contrary is explicitly rejected. Under facts in this case, evidence that Ward altered the payee line of a check was insufficient to prove he made false information.

STATUTES: K.S.A. 2016 Supp. 21-5801(a)(1), -5801(a)(2), -5811, -5823, -5823(a), -5824, -5824(a), 84-3-103(5); K.S.A. 2012 Supp. 21-5111(e), -5111(s); K.S.A. 21-5801, -5801(a)(2), -5824, -6804, -6807; K.S.A. 1996 Supp. 21-3711; K.S.A. 21-3711 (Ensley 1988); and K.S.A. 1970 Supp. 21-3710, -3711; G.S. 1923, 21-601 through 637

Kansas Court of Appeals

Civil

ACQUIESCENCE—DEBTORS—JUDGMENTS—MOOTNESS
SECURITY BANK OF KANSAS CITY V. TRIPWIRE OPERATIONS GROUP, LLC
WYANDOTTE DISTRICT COURT—APPEAL DISMISSED
NO. 117,534—JANUARY 12, 2018

FACTS: Security Bank of Kansas City had a guaranty contract with Anthony Nichols to guarantee the debts of Tripwire Operations Group, LLC. When Tripwire defaulted on a credit card, the Bank sued Tripwire, Nichols, and Ryan Morris. After the district court granted summary judgment to the Bank, Nichols appealed. After the appeal was docketed but before it could be heard by the panel, the Bank moved to involuntarily dismiss this appeal on grounds of mootness. The Bank claimed that Nichols acquiesced in the judgment because the Bank exercised its right of setoff and took money out of Nichols' bank account to cover the judgment.

ISSUES: (1) Availability of setoff as remedy; (2) mootness; (3) acquiescence

HELD: Setoff is a statutory self-help remedy available to banks. There is no requirement that any judicial action occur before setoff is exercised. And the guaranty contract signed by Nichols included a setoff provision. In the absence of a stay of the judgment against Nichols, the Bank exercised its right of setoff and satisfied its claim against Nichols. Once the judgment was satisfied, the Bank filed a satisfaction of judgment. The satisfaction of judgment concluded this litigation, rendering this appeal moot. Because the setoff was not a voluntary relinquishment by Nichols, the doctrine of acquiescence did not apply.

STATUTES: K.S.A. 2016 Supp. 60-262(d), -2401; and K.S.A. 9-1206, 60-721

Criminal

constitutional law—criminal law—evidence—fourth amendment—search and seizure
state v. bannon
sedgwick district court—affirmed
No. 112,212—january 12, 2018

FACTS: Acting on verified information, officers located Bannon in student apartment lobby and found a concealed hand gun during a pat-down search. Bannon filed motion to suppress this evidence, arguing it was taken during a warrantless search of his person within the curtilage of his apartment, or alternatively, the officers lacked reasonable suspicion or probable cause to seize and search him. District court denied the motion, and jury convicted Bannon of criminal carrying of a weapon. On appeal Bannon claimed he was in lawful possession of the firearm because the front lobby to his apartment building qualified as part of his abode or curtilage. He also claimed the district court erred in not granting his motion to suppress, arguing the evidence was discovered as a result of an improper pat-down search. In unpublished opinion, Court of Appeals found the motion to suppress should have been granted because a warrantless pat-down search occurred without evidence a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous, or that officers were reasonably concerned for their safety or safety of others. State’s petition for review granted. Supreme Court reversed and remanded, adopting and applying a hybrid approach to the second step of a Terry stop: testimony as to officer’s subjective belief or fear is a factor for consideration in the objective analysis of the totality of the circumstances, but absence of such testimony does not invalidate the reasonableness of a frisk. State v. Bannon, 306 Kan. 886 (2017).

ISSUES: (1) Curtilage or abode, (2) motion to suppress

HELD: Issue of first impression in Kansas as to whether the lobby of an apartment building is considered the tenant’s land or abode under K.S.A. 2012 Supp. 21-6302(a)(4). Under analysis in recent unpublished Kansas Court of Appeals case and cases in other jurisdictions, the student apartment lobby in this case was not an extension of Bannon’s apartment or abode. More than nonexclusive permissive use with others is needed. Also, at time of the stop and frisk, Bannon was sitting in a chair reading. He was not using the lobby as an extension of his land through an ingress-egress easement, and had no right under an easement to possess a firearm in the front lobby.

District court’s denial of Bannon’s motion to suppress did not violate the Fourth Amendment. The stop of Bannon in the lobby was sufficiently public for officers to initiate the stop. Considering the totality of the circumstances, and applying the hybrid test adopted by the Supreme Court, it was objectively reasonable for the officers to believe Bannon had a gun and to perform a pat-down search for their safety and the safety of others.

STATUTES: K.S.A. 2012 Supp. 21-6302, -6302(a)(4)

criminal

criminal law—evidence—statutes
state v. brazzle
riley district court—affirmed
No. 116,649—january 12, 2017

FACTS: Brazzle was convicted of drug charges involving methamphetamine and possession of oxycodone based on gray pills identified by an officer using www.drugs.com. District court allowed State to present evidence that Brazzle was involved in undercover methamphetamine transactions a week before his arrest in this case. On appeal, Brazzle claimed the admission of this K.S.A. 60-455 evidence was error because he never claimed his possession of methamphetamine was innocent, and the potential prejudice outweighed its probative value. He next challenged the jury instruction on the elements for possession of oxycodone. Third, he claimed insufficient evidence supported the oxycodone conviction because the State failed to present evidence the pill was tested, and failed to present any evidence that Brazzle did not have a prescription for that drug.

ISSUES: (1) Admission of evidence, (2) jury Instruction, (3) sufficiency of the evidence - possession of a controlled substance, (4) proof of prescription

HELD: District court did not abuse its discretion by admitting the evidence under K.S.A. 60-455. By claiming the State could not prove the items discovered in the stopped vehicle belonged to him, Brazzle essentially raised a defense of innocence, and the evidence was highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use.

Brazzle invited error by advocating the version of the instruction given to the jury.

Issue of first impression in Kansas. When sufficiency of the evidence for possession of a controlled substance is challenged, uncontroverted testimony by a witness identifying the substance through consultation with www.drugs.com is sufficient to support jury’s conclusion beyond a reasonable doubt that the substance was that identified by the witness. Here, this evidence was admitted without objection and without any evidence to the contrary. The officer’s testimony was sufficient for jury to reasonably conclude the gray pills were oxycodone hydrochloride.

Relevant statutes are interpreted. Lawful possession of a controlled substance by prescription is an affirmative defense to the charge of possession of a controlled substance under K.S.A. 2016 Supp. 21-5706. A person charged with unlawful possession of a controlled substance must bring forward a claim of legal authorization to possess the controlled substance at issue.

CONCURRENCE and DISSENT (Atcheson, J.): Dissents from majority’s finding that sufficient evidence supported the possession of oxycodone conviction. Here the jurors had to speculate on the facts and basic details about the officer’s internet-based identification of the seized pills as oxycodone, and cases cited by the majority are inapposite to the majority’s conclusion.

STATUTES: K.S.A. 2016 Supp. 21-5706, 60-455, -455(b), 65-4107(b)(1)(N), -4107(b)(2), -4116(a), -4116(b), -4116(c), -4116(c)(3), -4123, -4123(a), -4123(b); K.S.A. 60-455, 65-4101 et seq.

criminal

constitutional law—due process—criminal law—criminal procedure—statutes
state v. owens
wyandotte district court—reversed and vacated
No. 116,979—january 12, 2018

FACTS: Owens was convicted in 2003 of aggravated indecent liberties with a child, and was required to register with sheriff four times a year. He did so in 2014, but was unable to pay the $20 fee for each registration. Each failure to pay was itself a crime absent compliance with K.S.A 2014 Supp. 22-4905(k)(3) which provides waiver of the fee payment only if the offender obtained a judicial finding of indigency prior to the required reporting. Owen challenged the constitutionality of that statute, as applied to him, as not providing procedural due process.

ISSUE: Due Process

HELD: Finding a defendant criminally liable for failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant’s procedural-due-process rights as applied in this case because Owens had no reasonably available path to get a court finding of indigency. Owens received no notice of a procedure he could use to get a court to determine he was unable to pay the fee before his registration dates, and Legislature provided no clear guidance about how one might do so.

STATUTE: K.S.A. 2014 Supp. 21-5203(f), 22-4903, -4903(c)(3), -4905, -4905(k)(3)

Tags:  Attorney Discipline  Johnson  Riley  Sedgwick  suspension  Wyandotte 

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January 5, 2018 Digests

Posted By Administration, Monday, January 8, 2018

Kansas Supreme Court

CRIMINAL

constitutional law—crimes and punishment—sentencing—statutes
state v. kinder
wyandotte district court—reversed; court of appeals—reversed
NO. 112,844—january 5, 2018

FACTS: Kinder entered no contest plea to one count of mistreatment of a dependent adult. District court imposed a presumptive 9-month sentence with 18-months’ probation, and awarded credit for 360 days of pretrial confinement. Kinder appealed, arguing probation was improper and violated Double Jeopardy Clause because he had already served his sentence of confinement. In unpublished opinion, Court of Appeals dismissed the appeal without addressing whether sentencing probation was error under Kansas Sentencing Guidelines Act (KSGA). Instead, the panel held there was no jurisdiction to review a presumptive sentence. Kinder’s petition for review granted.

ISSUE: KSGA Sentence of Probation

HELD: Panel’s dismissal of the appeal is reversed. Review is appropriate because Kinder is not actually challenging a presumptive sentence. District court erred in imposing probation. “Probation,” as defined by KSGA, cannot be imposed after the underlying full sentence of confinement has been served.

STATUTES:  K.S.A. 2016 Supp. 21-6603(e), -6603(g), -6615, -6803(q), -6804, -6804(a)(3), -6820(c)(1), 22-3716, -3716(c)(1)(B)-(E), -3716(c)(7), -3716(c)(11) -3717(d)(1)(C); K.S.A. 20-3018(b)

Kansas Court of Appeals

CIVIL

MOOTNESS—PROTECTION FROM STALKING
KERRY G. V. STACY C.
HARVEY DISTRICT COURT—REVERSED AND VACATED
NO. 117,070—JANUARY 5, 2018

FACTS: Kerry and Stacy were involved in a romantic relationship. After issues arose, Kerry reported Stacy to the police and filed a petition for a protection from abuse order against him. The district court entered a final PFA order against Stacy that was to be in place until October 13, 2016. Prior to the expiration of that PFA, Kerry filed a motion to extend the PFA for an additional year. The matter was never set for hearing, although both parties and their attorneys made appearances before the district court. But Stacy did not learn about the extended PFA until an order was served on him. He moved to dismiss the extension, claiming that the lack of notice and hearing violated his due process rights. The district court denied that motion, claiming that the district court could extend the PFA without notice or hearing. Stacy appealed.

ISSUES: (1) Mootness; (2) due process considerations in extending the PFA; (3) constitutionality of K.S.A. 2016 Supp. 60-3107(e)(1)

HELD: The PFA has already expired, meaning that Stacy cannot receive relief from the appellate court. But this issue is capable of repetition, and the issue is one of public importance. Because of that, the appeal is not moot. It is undisputed that the motion to extend the PFA was not served on Stacy or his attorney. The content of the motion did not provide any clue as to why Kerry believed extension of the PFA was necessary. Because the PFA was entered without any notice to Stacy it violated his due process rights. That order was vacated. K.S.A. 2016 Supp. 60-3107(e)(1) was not void for vagueness. The district court's grant of the PFA extension without exercising any discretion at all was an abuse.

STATUTES: K.S.A. 2016 Supp. 59-3073(a)(7), 60-205(a)(1)(D), -205(b)(1), -205(b)(2)(C), -206(b), -206(c), -207(b), -3104(a), -3104(d), -3105(a), -31a05(b), -3106(a), -3106(b), -3107(e); K.S.A. 53-601

Tags:  Harvey  Wyandotte 

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December 15, 2017 Digests

Posted By Administration, Monday, December 18, 2017

Kansas Supreme Court

criminal

constitutional law—criminal procedures—statutes
state v. amos
wyandotte district court—affirmed
No. 115,925—december 15, 2017

FACTS: Amos’ 1999 convictions of first-degree murder and conspiracy to commit aggravated robbery were affirmed on direct appeal. In 2015, he filed a motion to correct an illegal sentence, seeking relief under 2014 Kansas decisions and under 2013 legislation (now codified at K.S.A. 2016 Supp. 21-6620) enacted in response to Alleyne v. United States, 570 U.S. 99 (2013), to require jury findings before an enhanced mandatory minimum sentence can be imposed for first-degree murder. District court summarily denied the motion. Amos appealed, arguing for the first time that K.S.A. 2016 Supp. 21-6620(f), which makes the 2013 amendment inapplicable to sentences that were final before June 17, 2013, violates the Equal Protection Clause.

ISSUE: Motion to correct illegal sentence

HELD: A claim that a sentence is illegal because it violates the constitution cannot be brought via K.S.A. 22-3504(1). Nor can a K.S.A. 22-3504(1) motion to correct an illegal sentence serve as the procedural vehicle for attacking the constitutionality of K.S.A. 2016 Supp. 21-6620(f). Impact of 2017 amendment of K.S.A. 22-3504 is not considered in this case.

STATUTES: K.S.A. 2016 Supp. 21-6620, -6620(f); K.S.A. 22-3504(1)

criminal

constitutional law—criminal procedure—sentencing
state v. campbell
sedgwick district court—affirmed
No. 114,814—december 15, 2017

FACTS: Campbell was convicted in 1996 of first-degree murder and multiple crimes. In calculating criminal history for application of the Kansas Sentencing Guidelines Act (KSGA), district court classified several of Campbell’s out-of-state convictions as person felonies. In 2015, Campbell filed motion to correct an illegal sentence, citing State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief, refusing to apply Murdock retroactively. Murdock was later overruled by State v. Keel, 302 Kan. 560 (2015). Campbell appealed claiming: (1) his sentence was illegal under Murdock; (2) application of Keel to Campbell’s motion violated the Ex Post Facto Clause; (3) KSGA’s person/nonperson classification of pre-KSGA offenses violates the Sixth Amendment; and (4) summary denial of his motion denied him his right under K.S.A. 22-3504(1) to a hearing. Appeal transferred to the Kansas Supreme Court.

ISSUES: (1) Classification of out-of-state convictions, (2) Ex Post Facto Clause, (3) Sixth Amendment, (4) summary denial

HELD: Campbell was not entitled to have his out-of-state convictions classified as nonperson offenses under Murdock which was overruled by Keel, and is not entitled to relief under holding in Keel. Impact of 2017 amendment of K.S.A. 22-3504 is not addressed.

Application of Keel in this case does not violate the Ex Post Facto Clause. The 1993 statutes interpreted in Keel were in effect when Campbell committed crimes in 1996. They are not laws that increased the potential punishment after Campbell’s crimes were committed.

Holding in State v. Collier, 306 Kan. 521 (2017), defeats Campbell’s Sixth Amendment claim.

Campbell mistakenly relies on 2017 amendment to K.S.A. 22-3504 which was not effective until after Campbell’s hearing. Under law that applied at the time of Campbell’s hearing, he had no right to be present for the court’s preliminary review or to demand a hearing at which he could be present.

STATUTES:  K.S.A. 2016 Supp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 1993 Supp. 21-4710; K.S.A. 21-4711, 22-3504, -3504(1)

criminal

criminal procedure—juries—prosecutors—sentencing
state v. hilt
johnson district court—affirmed
No. 114,682—december 15, 2017

FACTS: Hilt was convicted of first-degree murder. Conviction affirmed, but hard-50 sentence vacated and remanded for resentencing in accord with Alleyne v. United States, 570 U.S. 99 (2013). On remand, district court replaced a juror who had consulted a high school yearbook in violation of the court’s repeated admonitions, and was not forthright when questioned. District court imposed hard-50 sentence pursuant to jury’s verdict. Hilt appealed claiming: (1) district court’s removal of the juror during deliberation was error because the juror was not doing internet research on the case, and the juror’s failure to be forthright was not a proper basis for dismissal; (2) prosector erred during closing argument by telling jury that its role was to determine whether Hilt would get hard 50 sentence or be eligible for parole in 25 years, and telling jury it did not have to determine which blows to the victim were inflicted by Hilt and which were inflicted by co-defendants; and (3) the district court’s pronouncement of sentence was illegal and violated his right to be present at sentencing

ISSUES: (1) Removal of juror, (2) prosecutorial error, (3) pronouncement of sentence

HELD: No abuse of district court’s discretion to remove and replace a juror. Under facts in case, juror who consulted the yearbook violated the judge’s admonitions to do no investigation of any matter outside the courtroom. Judge’s express skepticism of the juror’s honesty was not an independent basis for removal and replacement.

Statutory subsections governing Hilt’s crime made a hard-50 sentence mandatory once a jury found beyond a reasonable doubt that an aggravating circumstance existed that was not outweighed by any applicable mitigating circumstances. District judge had no discretion to deviate from the jury’s hard-50 verdict, and prosecutor did not misstate the law. Nor did prosecutor misstate the law by telling jurors they could vote for hard-50 sentence even if State did not prove which co-defendant inflicted specific blows or wounds.

District judge’s statements in open court, that appropriateness of imposing the hard-50 sentence was the jury’s decision which the court was going to follow and impose, did not create an illegal ambiguity in the length of Hilt’s sentence or violate his right to be present at sentencing.

STATUTES: K.S.A. 2016 Supp. 21-6620(c), -6620(d), -6620(e), -6620(e)(1), -6620(e)(5), -6623, -6624(f), -6625, -6625(a), -6625(a)(4), 22-3405, -3412(c); K.S.A. 2013 Supp. 21-6620, -6624;  K.S.A. 22-3424, -3504(3)

criminal

crimes and punishment—criminal procedure—juries—sentencing
state v. ruiz-ascencio
lyon district court—convictions affirmed—sentence vacated in part— remanded
No. 115,343—december 15, 2017

FACTS: Ruiz-Ascencio was convicted of attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. District court imposed hard-25 sentence for first-degree murder, prison terms for the other three offenses, and lifetime post-release supervision on all four counts. Ruiz-Ascencio appealed claiming the district court: (1) erred by not instructing jury on voluntary manslaughter for the first-degree murder and attempted first-degree murder charges because both victims were shot during a sudden quarrel; and (2) imposed an illegal sentence by ordering lifetime post-release supervision on each count.

ISSUES: (1) Jury instructions, (2) sentencing

HELD: Kansas cases are reviewed. Under facts in this case, a voluntary manslaughter instruction was not factually appropriate. No facts or reasonable inferences that can be drawn therefrom to suggest a sudden quarrel, or that Ruiz-Ascencio otherwise acted in a heat of passion. One victim’s words or gestures were not enough to constitute legally sufficient provocation.

State concedes error in sentencing. Judgment imposing lifetime post-release supervision on all four counts is vacated as contrary to K.S.A. 2016 Supp. 22-3717. Remanded for resentencing.   

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

STATUTES: K.S.A. 2016 Supp. 21-5404(1), 22-3717, -3717(b)(2)(C), -3717(d)(1)(A), -3717(d)(1)(C); K.S.A. 21-5404, 22-3504

Kansas Court of Appeals

CIVIL

LIMITATION OF ACTIONS—TORTS
BONNETTE V. TRIPLE D AUTO PARTS
HAMILTON DISTRICT COURT—AFFIRMED
NO. 116,578—DECEMBER 15, 2017

FACTS: Triple D Auto Parts purchased its store in 1990. At that time, the building's exterior had not changed since its construction in 1925. One feature of the exterior was a step down from the entrance/exit door to the sidewalk. Bonnette, who was a regular customer, fell when leaving the store and badly broke her wrist. Although she had navigated the step on dozens of occasions, she alleged that she fell because she could not see the step. Bonnette filed suit against Triple D, claiming negligence. Triple D responded by claiming that it was protected by the statute of repose. The district court granted Triple D's motion for summary judgment on those grounds, and this appeal followed.

ISSUES: (1) Applicability of the statute of repose; (2) duty to warn

HELD: The facts show that Triple D failed to warn Bonnette about the dangerous step. Because the duty to warn is an ongoing duty, that duty was breached on the day Bonnette was injured. This ongoing duty prevents application of the statute of repose.  But, Bonnette had actual knowledge of the step, and the danger was open and obvious. There is no evidence that Bonnette was distracted when leaving the store. Because Triple D did not have a duty to warn it is entitled to judgment as a matter of law.

STATUTES: K.S.A. 60-513, -513(b)

Tags:  constitutional law  criminal procedure  Hamilton  juries  limitations of actions  Lyon  procedures  prosecutors  Sedgwick  sentencing  statutes  torts  Wyandotte 

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August 4, 2017 Digests

Posted By Administration, Monday, August 7, 2017

Kansas Supreme Court

Civil

EVIDENCE—JURIES—TORTS
BULLOCK V. BNSF RAILWAY COMPANY
WYANDOTTE DISTRICT COURT— COURT IS APPEALS IS AFFIRMED—DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 111,599—AUGUST 4, 2017

FACTS: While working for BNSF, Bullock slipped and was injured after stepping in diesel fuel. It was later determined that the fuel was spilled by one of Bullock's co-workers. Bullock sued BNSF and BNSF claimed the affirmative defense that Bullock was contributorily negligent for failing to appreciate the danger posed by the diesel fuel. Evidence at trial showed that Bullock was not disciplined for his conduct but that the employee who caused the spill was disciplined. The jury found BNSF 100 percent at fault. After BNSF appealed, the Court of Appeals found that evidence of the other employee's discipline was a subsequent remedial measure barred by K.S.A. 60-451, and that court ordered the matter remanded for a new trial. Bullock's petition for review was granted.

ISSUES: (1) Use of post-accident employee discipline as evidence; (2) counsel's statements during closing argument

HELD: The post-accident discipline of another employee constitutes a subsequent remedial measure and is barred from introduction by K.S.A. 60-451. This is true even if a party attempts to use evidence of subsequent remedial measures to prove causation or defeat a claim of contributory negligence. But evidence of an employer's post-event investigation is admissible under that same statute. A jury should not be instructed to act on their feelings about what is fair or to be concerned with community standards or community conscience. Counsel's remarks during closing argument were inappropriate.

STATUTE: K.S.A. 60-451, 3701(d)(1)

Criminal

CONFRONTATION CLAUSE—EVIDENCE—FINDINGS OF FACT
STATE V. JONES
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 113,409—AUGUST 4, 2017

FACTS: Jones and a co-defendant were convicted of killing a man by injecting him with a lethal amount of methamphetamine. Jones appealed two issues to the Kansas Supreme Court.

ISUES: (1) Admission of forensic test results; (2) admission of out-of-court statements

HELD: The lab's chief toxicologist interpreted data to determine that there were high levels of methamphetamine present in the decedent's blood. From that information, the coroner determined that the victim died from methamphetamine toxicity. The coroner testified at trial about the toxicology results and what they meant, and the toxicologist testified about the results of the laboratory tests. Even if the person who actually performed the testing did not testify, any error stemming from that fact is harmless. The issue of whether evidence was properly admitted under the co-conspirator exception to the hearsay rule was not preserved for appeal.

STATUTE: K.S.A. 2016 Supp. 60-460, -460(i)(2)

 

CONSTITUTIONAL LAW—STATUTES
STATE V. MEREDITH
RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED—DISTRICT COURT IS AFFIRMED
NO. 110,520—AUGUST 4, 2017

FACTS: Meredith pled no contest to a drug crime in 2009. At the time he committed the offense, the Kansas Offender Registration Act (KORA) required Meredith to register as an offender for 10 years. But mistakes in both the sentencing procedure and the journal entry made it unclear how long Meredith's registration period was to run. After Meredith's probation was revoked, the district court noted that the current statute required a 15-year registration period and that sentence was imposed. Meredith appealed and the Court of Appeals affirmed, finding that KORA does not violate the Ex Post Facto Clause. Meredith's petition for review was granted.

ISSUE: Retroactive application of KORA

HELD: The legislature intended KORA to be a non-punitive civil regulatory scheme for all offenders. The record on appeal does not show any evidence that registration is punitive for drug offenders. Since the registration requirement is not a punishment, it cannot be an Ex Post Facto violation.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ.) KORA constitutes punishment even if that was not the legislature's intent.  

STATUTES: United States Constitution Article I, § 10; K.S.A. 2011 Supp. 22-4906(a); K.S.A. 2008 Supp. 65-4161(a)

 

CONSTITUTIONAL LAW—STATUTES
STATE V. REED
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 110,277—AUGUST 4, 2017

FACTS: Reed was convicted of a sex crime and, as a result, was required to register as a sex offender for 10 years. Reed stipulated that for a period of time during that 10 years, he did not comply with registration requirements. Before Reed's registration period expired, the legislature amended the Kansas Offender Registration Act (KORA) and added a tolling period for periods of registrant noncompliance or incarceration. When he was convicted for registration violations, Reed claimed that he could not be convicted because his registration period had expired prior to being charged. After his conviction, Reed appealed, claiming that the tolling provision added by the legislature could not be applied to him without violating the Ex Post Facto Clause of the United States Constitution. The Court of Appeals affirmed the district court, finding that the amendments to KORA were not punitive. Reed's petition for review was granted.

ISSUE: Retroactive application of KORA amendments

HELD: The court has jurisdiction to hear this statutory argument even though it was not raised below. Registration under KORA for sex offenders is not punishment, so retroactive application of any provision cannot violate the Ex Post Facto Clause.

DISSENT: (Johnson, J., joined by Beier and Rosen, JJ.) KORA is punitive in effect rendering this an Ex Post Facto Violation.

STATUTES: K.S.A. 2016 Supp. 22-3210(d)(2), -3210(e)(2); K.S.A. 1994 Supp. 22-4902(b)(3), -4906(a); K.S.A. 22-4906(a)

 

EVIDENCE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT
STATE V. SEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 114,417—AUGUST 4, 2017

FACTS: Sean was convicted of first-degree premeditated murder and other serious felonies after he allegedly killed a man by injecting him with a lethal amount of methamphetamine. Most of the state's evidence was provided by codefendants. Sean appealed.

ISSUES: (1) Suppression of interrogation statements; (2) prosecutorial misconduct; (3) erroneous admission of bad acts evidence; (4) erroneous admission of hearsay statements; (5) motion for mistrial; (6) limitation on cross-examination; (7) improper sympathy evidence; (8) cumulative error

HELD: The court cannot and will not reach the merits of Sean's argument about his custodial statements because his attorney did not properly preserve this issue for appeal. The introduction of evidence about drugs did not violate the order in limine. Comments about Sean's retention of an attorney were beyond the latitude afforded to prosecutors, but the error was not so prejudicial as to require reversal. The prosecutor's comment on a witness' testimony was a fair comment on facts in evidence and not inappropriate commentary on that witness' credibility. The issue of prior bad acts evidence is not properly before the court due to the lack of a contemporaneous objection. Several of the statements about which Sean now complains are not hearsay. The other statements might have been hearsay, but their admission was harmless. Testimony about gang affiliation was a passing comment by a witness and not a deliberate violation of a pretrial order. And while that testimony was a fundamental failure of the proceedings, the district court did not abuse its discretion by deciding that any resulting prejudice could be mitigated. The subject matter that was excluded during cross-examination offered no substantive or exculpatory evidence and was consequently not wrongly excluded. The court will not review any claim of error regarding testimony of the victim's mother because the issue was not preserved for appeal by a contemporaneous objection. Sean was not prejudiced by cumulative error.

STATUTES: K.S.A. 2016 Supp. 60-261, -455, -460, -460(j); K.S.A. 22-3423(1)(c), 60-404, -2105

Kansas Court of Appeals

Civil

 DEFAULT JUDGMENT—GARNISHMENT
MAINLAND INVESTMENT GROUP V. DIVERSICARE
LYON DISTRICT COURT—REVERSED AND VACATED
NO. 116,921—AUGUST 4, 2017

FACTS: Mainland filed a petition against Tonya Smith after she allegedly wrote a bad check. Smith did not respond to the petition and Mainland received a default judgment. Mainland tried to collect on that judgment for 10 years but was apparently unable to locate Smith. After finally tracking her down, Mainland received an order of garnishment and served Diversicare, who Mainland believed was Smith's employer. Diversicare did not answer the order of garnishment and Mainland sought judgment against Diversicare for lack of compliance. At this point Diversicare sought permission to file an out-of-time answer, claiming that it never received the original garnishment order and that it had never employed Smith. The district court ultimately denied this motion and ordered Diversicare to pay the judgment plus costs.

ISSUE: Ability to garnish

HELD: Diversicare failed to answer the order of garnishment, but it is undisputed that Mainland released Diversicare from the order of garnishment. In the absence of any garnishment order there is nothing upon which to enter default judgment against Diversicare, and the district court erred by entering judgment against Diversicare.

STATUTES: K.S.A. 2016 Supp. 61-3003(g), -3504(a), -3504(b), -3507, -3507(a), -3507(b), -3508, -3510; K.S.A. 61-3502, -3514

 

ICWA—PARENTAL RIGHTS
IN RE D.H., JR.
MEADE DISTRICT COURT—AFFIRMED IN PART, REMANDED WITH DIRECTIONS
NO. 116,422—AUGUST 4, 2017

FACTS: D.H., Jr. caught the attention of state officials shortly after his birth, when it was suggested that Mother used methamphetamine during her pregnancy. As the child's life progressed, there was a series of contacts with the police over drug use and domestic violence, and the family had no stability in housing or employment. D.J., Jr. finally came in to custody after both parents were incarcerated. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficient evidence to terminate father's rights; (2) sufficient evidence to terminate mother's rights; (3) ineffective assistance of counsel; (4) compliance with ICWA requirements

HELD: Father did not make sufficient efforts to regain custody of his child. His continued positive drug tests were a primary cause of this. There was sufficient evidence that Father's rights should have been terminated. Mother was similarly situated. She had a long history of drug abuse and instability. In addition, mother was subject to statutory presumptions of unfitness. Mother's first attorney has been disbarred, and the record shows that his representation of mother fell below minimum standards. But that representation came early in the case, and the two other lawyers who were appointed for mother ably represented her. Providing information to a tribe is mandatory under ICWA. When the tribe requested more information the state had an obligation to provide it. The case must be remanded so that an attempt can be made to provide missing information to the tribe.

STATUTES: 25 U.S.C. § 1903(4); K.S.A. 2016 Supp. 38-2269(a), -2269(b), -2269(c), -2269(f), -2269(g)(1), -2271(a)(1), -2271(a)(3), -2271(b)

Tags:  Lyon  Meade  Riley  Sedgwick  Wyandotte 

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