Posted By Administration,
Monday, March 18, 2019
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Kansas Supreme Court
ORDER OF PROBATION
IN THE MATTER OF SAM S. KEPFIELD
NOS. 112,897 AND 119,709 – MARCH 15, 2019
FACTS: Kepfield has a previous history of discipline; he received a three-year suspension which was suspended while Kepfield was placed on supervised probation. A new disciplinary complaint was filed in 2018 alleging violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4 (communication); 1.15(a) (safekeeping property); 1.16(d) (terminating representation); and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation). After hearing evidence, the panel concluded that Kepfield did not violate KRPC 1.1 or 1.4. Kepfield stipulated to the other violations and the panel found evidence in support. The violations arose after Kepfield failed to file a petition for review on behalf of a client. Issues also arose after it was discovered that not only did Kepfield did not have an attorney trust account, he lied to investigators about that fact when asked.
HEARING PANEL: The panel not only found that Kepfield committed new violations but also that he violated the terms of his probation. The hearing panel considered the violations, the aggravating factors (dishonest or selfish motive, multiple offenses, and bad faith obstruction of the disciplinary process), and the mitigating factors (Kepfield's mental health, his cooperation in some aspects of the investigation, and his good character and reputation). The disciplinary administrator asked that Kepfield be disbarred. Kepfield asked that his probation be extended. The hearing panel recommended a three-year suspension with a probationary term entered after Kepfield serves 6 months of that suspension.
HELD: With no exceptions taken, the hearing panel's final report is deemed admitted. After hearing arguments, a majority of the court granted the motion to revoke probation and ordered the one-year suspension reinstated. After Kepfield serves this one-year suspension, the court recommended that Kepfield be suspended from practice for three years, with a three-year probation plan implemented after six months. A minority of the court agreed with the disciplinary administrator and would have imposed discipline of an indefinite suspension.
DISCHARGE FROM PROBATION
IN THE MATTER OF STEPHEN M. STARK
NO. 114,583 – MARCH 15, 2019
FACTS: In June 2016, the Kansas Supreme Court suspended Stark for two years, with the suspension stayed and Stark ordered to serve a two-year term of probation. Stark filed a motion for discharge from probation in February 2019.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator confirmed that Stark fully complied with the conditions of his probation. There was no objection to Stark's release from probation.
HELD: In the absence of any objection, the motion is granted. Stark is discharged from probation and this proceeding is closed.
STATUTE OF LIMITATIONS
DAWSON V. BNSF RAILWAY COMPANY
WYANDOTTE DISTRICT COURT – AFFIRMED
COURT OF APPEALS – REVERSED
NO. 112,925 – MARCH 15, 2019
FACTS: Dawson was diagnosed with arthritis in his back in 2004 and degenerative disc disease in 2008. Dawson was a train engineer, and after several rough rides his pain intensified. While seeking treatment in 2010, a doctor mentioned that he treated several railroad employees. Dawson claimed this was the first time he realized that his work duties could have caused his back pain. After a spinal fusion surgery Dawson was unable to continue to perform his job duties. In 2011 Dawson sued BNSF, his employer, under the Federal Employers' Liability Act alleging that negligence caused his back injuries. Although BNSF argued that Dawson's claims were time barred, the case went before a jury, which found in Dawson's favor. BNSF appealed and the Court of Appeals ruled that the district court erred when it ruled that Dawson's claims were timely. Dawson's petition for review was granted.
ISSUES: (1) Disregard of Dawson's factual assertions; (2) timeliness of Dawson's cumulative injury
HELD: Although Dawson failed to comply with Supreme Court Rule 6.02(a)(4) by providing pinpoint citations to the record on appeal, it was error to disregard the factual assertions supported by the record. Dawson properly requested all necessary materials but the Clerk of the District Court failed to compile an accurate record. Other pleadings that are in the record on appeal support Dawson's factual claims. Generally, a cause of action accrues when an injury occurs. With cumulative injuries, time begins to run when the injured person discovers or should have discovered the existence and cause of the injury. Dawson presented some evidence that he did not know about the cause of his injury until he was within three years before filing his claim. Because there was a factual dispute, the matter was properly sent to the jury. Dawson's cumulative injury claim was timely filed. The case must be remanded back to the Court of Appeals for consideration of Dawson's other claims.
STATUTES: 45 U.S.C. § 51, § 56 (2012); K.S.A. 2011 Supp. 60-250(a), -250(b), -259
DEATH OF A PARTY—DIVORCE—JUDGMENT
IN RE MARRIAGE OF TOWLE AND LEGARE
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,021 – MARCH 15, 2019
FACTS: Dana and Louise were married in the late 1980s. Dana filed a petition for separate maintenance in 2015. The parties agreed to a temporary order which allowed the couple to live separately and ordered Dana to pay Louise's living expenses. While the process of working through the couple's assets was occurring, Louise was diagnosed with terminal lung cancer. The parties reached an agreement on property division and spousal support. The district court approved the agreement and filled out a docket sheet so that the parties could later attach a journal entry and get it filed. Unfortunately, Louise died before the journal entry was drafted and filed. Her counsel asked that her son, Mathieu, be substituted as a successor in interest. The district court granted that motion over Dana's objection. Mathieu's counsel continued to stall on preparing the journal entry, which was not complete until February 2018. Dana appealed.
ISSUES: (1) Whether death of party to a separate maintenance action required dismissal; (2) sufficiency of journal entry
HELD: A divorce action is purely personal and ends on the death of either spouse. A search of both common law and previous cases shows that a separate maintenance action is the same. It is personal and abates at the time of a party's death. The district court's docket sheet could not qualify as a judgment, as it is expressly excluded by statute. Although it was signed by the judge, the docket sheet was never filed. The district court is reversed and the separate maintenance action must be dismissed.
STATUTES: K.S.A. 2017 Supp. 60-2225(a), -258; K.S.A. 2016 Supp. 60-241(a), -258, -260(b); K.S.A. 60-1801
Kansas Court of Appeals
SCHOOLS—SCOPE OF REVIEW
B.O.A. V. U.S.D. 480 BOARD OF EDUCATION
SEWARD DISTRICT COURT—AFFIRMED
NO. 119,773 – MARCH 15, 2019
FACTS: An investigation revealed that B.O.A. threatened a school shooting on social media. B.O.A. explained that it was meant as a joke, and he apologized to the principal and the school district. The principal recommended a 186-day expulsion. B.O.A. requested and received a formal hearing. The hearing officer agreed with the principal and imposed a 186-day expulsion, the maximum allowed by statute. B.O.A. appealed. The superintendent acknowledged the gravity of B.O.A.'s mistake, but recommended a shorter expulsion. The Board of Education disagreed and expelled B.O.A. for 186 school days, beginning in January 2018. B.O.A. appealed to the district court, which found that the Board of Education's actions were arbitrary and capricious. The district court granted B.O.A. the relief he requested – limiting his expulsion to the spring of 2018. The Board appealed.
ISSUES: (1) Scope of permissible review
HELD: The record on appeal contains facts which support the district court's decision. There is evidence that B.O.A.'s social media post was a joke that went too far. He accepted responsibility and apologized. The Board offered no explanation as to why it imposed the maximum period of expulsion instead of following the superintendent's recommendation. The district court acted within its scope of review and is affirmed.
STATUTES: K.S.A. 60-2101(d), 72-6114(a) – (d), -6115(a)
In re J.S.P.
wyandotte district court—dismissed
no. 118,790 — March 15, 2019
FACTS: J.S.P. entered no contest plea to charges for crimes occurring when he was 14 years old. In an extended juvenile jurisdiction proceeding (EJJP), district court imposed a juvenile sentence of 72 months with 24 months of conditional release, as well as adult sentence of 237 months to be served if J.S.P. failed to complete his juvenile sentence or comply with conditional release. Prior to expiration of the conditional release term, State filed motion to revoke the juvenile sentence and to impose the adult sentence. District court granted the motion, finding J.S.P. had violated conditions of his conditional release. J.S.P. appealed, alleging denial of due process, insufficient evidence, and Eighth Amendment claims. State contended there was no statutory authority for the appeal.
ISSUE: (1) Appellate Jurisdiction
HELD: The appeal is dismissed. Although juvenile offenders are entitled to similar constitutional protections as adults, they are not guaranteed the same statutory rights as adults unless specially provided for in the revised Juvenile Justice Code. Kansas statutes reviewed, finding none provide a juvenile offender with right to appeal an order revoking the juvenile sentence and ordering imposition of the stayed adult sentence in an EJJP.
STATUTES: K.S.A. 2018 Supp. 38-2364, -2380, -2380(a), -2380(a)(1), -2380(b), -2380(b)(2)(A)-(B), -2382; K.S.A. 2015 Supp. 38-2364; K.S.A. 2014 Supp. 38-2380(b)
appeals—appellate procedure—criminal procedure—judgments— restitution—statutes
state v. dwyer
sedgwick district court—reversed
No. 118,940 — march 15, 2019
FACTS: Dwyer convicted of theft in 2003. Prison sentence with postrelease supervision imposed, and $8,450 in restitution ordered. In November 2017 he filed motion to release the restitution judgment. He argued the judgment went dormant after five years of inaction and was void and subject to release after no collection had been attempted for two additional years. Applying K.S.A. 60-2403 as amended in 2015 which reduced the collection period from ten to five years and provided that all restitution judgments not yet void were enforceable forever, district court found the judgment became void the minute the 2015 amendments went into effect and thus was not enforceable. District court granted Dwyer’s motion and released the restitution judgment. State appealed. Dwyer filed motion to dismiss the appeal arguing it was untimely filed within 14 days allowed in a criminal case, or within 30 days in a civil case. He also argued the appeal failed to satisfy any statutory circumstance for allowing an appeal in a criminal case, and failed to list the basis for jurisdiction in its notice of appeal.
ISSUES: (1) Appellate Jurisdiction; (2) Statutory Interpretation—K.S.A. 2017 Supp. 60-2403
HELD: There is jurisdiction to hear the appeal. Proceedings regarding the collection of restitution judgments are civil in nature. Here, State filed timely notice of appeal within 30 days of the filing of the district court’s journal entry, and the notice of appeal satisfied all statutory requirements for filing an appeal in a civil case.
District court’s judgment is reversed. Under plain and unambiguous language of K.S.A. 2017 Supp. 60-2403, restitution judgments that were already void (or subject to mandatory release upon request) as of July 1, 2015, would not be subject to the new “never dormant” restitution provision because those judgments already had a predetermined expiration date. On facts in this case however, the collection clock on Dwyer’s restitution judgment began October 2003, making it subject to mandatory release in October 2015 after ten years dormant plus two additional years. The restitution judgment rendered against Dwyer is valid and is reinstated.
STATUTES: K.S.A. 2017 Supp. 22-3602, 60-258, -2403, -2403(a), -2403(b), -2403(d); K.S.A. 21-4603d(b)(2), 60-2101, -2101(a), -2102(a), -2102(a)(4), -2403, -2403(b), -2403(d)
Posted By Administration,
Monday, February 25, 2019
Updated: Monday, February 25, 2019
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Kansas Supreme Court
ORDER OF INDEFINITE SUSPENSION
IN RE LINDA S. DICKENS
NO. 119,198—FEBRUARY 22, 2019
FACTS: A hearing panel determined that Dickens violated Kansas Rules of Professional Conduct 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 1.8(e) (providing financial assistance to client); 1.16 (termination of representation); 3.2 (expediting litigation); 5.1 (responsibilities of partners, managers, and supervisory lawyers); 8.3(a) (reporting professional misconduct); 8.4(a) (misconduct); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). While representing a client, Dickens loaned the client $20,000 at 8.99% interest. After acknowledging that violation of the KRPC, Dickens entered the Kansas attorney diversion program. As part of that agreement, Dickens agreed to complete 16 hours of continuing legal education, including 6 hours of ethics. She failed to complete the required hours. The diversion was revoked in 2017 after Dickens had two new complaints filed against her. These complaints included allegations of entering a contingent fee arrangement without a written agreement and threatening clients when they did not give her money that was not earned. Dickens also had a pattern of missing deadlines.
HEARING PANEL: The hearing panel found that Dickens' violations were both knowing and negligent. In addition to several aggravating factors, the panel determined that there were mitigating factors, including Dickens' mental health. The disciplinary administrator recommended discipline ranging from a one-year suspension to disbarment, depending on which factual findings were made by the panel. Dickens asked that she be placed on probation and the panel agreed, finding that significant mitigating factors were compelling. The panel recommended a two-year suspension underlying a two-year term of probation.
HELD: Dickens did not contest the underlying factual allegations. Unlike the hearing panel, the Court was not persuaded that Dickens' underlying health conditions warranted probation in this case, where some of Dickens' actions involved dishonest conduct. Because Dickens showed bad faith and selfish motives when dealing with clients and the court, the Court determines that the appropriate discipline is an indefinite suspension with eligibility for reinstatement coming after three years.
EVIDENCE—SEX OFFENDER TREATMENT
IN RE CONE
CLAY DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 116,801—FEBRUARY 22, 2019
FACTS: In 2012, Cone was convicted of aggravated indecent solicitation of a child. Prior to his release from prison, the State sought to have him involuntarily committed as a sexually violent predator. During the trial on that motion, the State planned to have an expert witness testify about Cone's results on the Static-99R and Static-2002R tests, which are actuarial tools that attempt to measure an offender's risk of recidivism. Cone challenged the admissibility of the test results on grounds of relevance and reliability. The district court applied the Daubert standard and admitted both test results, in addition to other testimony. A jury found that Cone qualified as a sexually violent predator subject to involuntary commitment. The court of appeals affirmed that finding, holding that the district court did not abuse its discretion by admitting expert testimony about the actuarial tests. The Supreme Court then granted Cone's petition for review.
ISSUES: (1) Admissibility of expert testimony; (2) sufficiency of the evidence
HELD: In the absence of a cross-appeal, the court will presume that Daubert is the appropriate test for evaluating challenges to actuarial tools in a sexually violent predator case. Cone does not challenge the experts' qualifications and focuses only on the determination that the tests are reliable. After considering the Daubert factors, the court agrees that the district court did not abuse its discretion by admitting the expert testimony. Experts testified at Cone's hearing that he meets the diagnostic criteria for pedophilic disorder, and there was sufficient evidence to support that conclusion. This diagnosis allows for a finding that Cone is a sexually violent predator.
STATUTES: K.S.A. 2017 Supp. 59-29a02(b), 60-456(b); K.S.A. 2014 Supp. 60-456(b); K.S.A. 2011 Supp. 59-29a06(c)
SCOTT V. EWING
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,730—FEBRUARY 22, 2019
FACTS: Scott claims she was injured by fireworks during an Independence Day celebration in 2015. On June 30, 2016, Scott filed suit against Ewing, who hosted the event. Ewing answered, denying liability and raising a defense of comparative fault. On July 4, 2017, two years after the injury, Scott electronically filed a motion to amend her petition in order to add additional defendants. The district court allowed the amendment and Scott served the additional defendants in August 2017. The defendants moved to dismiss, claiming the statute of limitations barred recovery because Scott's actual motion to amend was not filed until July 5, 2017, after expiration of the statute of limitations. The district court granted the motion to dismiss, finding that the statute of limitations expired before Scott served the amended petition in August 2017. The court of appeals permitted an interlocutory review of this ruling.
ISSUES: (1) Expiration of the statute of limitations; (2) tolling of the statute of limitations
HELD: Although Scott was injured on July 4, 2015, the statute of limitations did not expire until July 5, 2017, because K.S.A. 60-206 extends the deadline until the next day that is not a holiday or weekend. The district court did not rule on Scott's motion to amend her pleading until after the statute of limitations had expired. K.S.A. 60-215(a) does not address how to handle this situation. The statute of limitations was tolled while the district court decided how to rule on Scott's motion to amend. The district court took more than 30 days to rule on the motion, and Scott should not be penalized for that delay.
STATUTES: K.S.A. 2017 Supp. 60-203(a), -206, -206(a)(1)(C), -206(a)(4)(A) -215(a), -215(a)(1), -215(a)(2); K.S.A. 60-513(a)(4)
Posted By Administration,
Tuesday, January 15, 2019
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Kansas Supreme Court
ORDER OF DISBARMENT
IN THE MATTER OF LAURENCE M. JARVIS
NO. 07012 – JANUARY 8, 2019
FACTS: In a letter addressed to the Clerk of the Appellate Courts, Laurence M. Jarvis voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Jarvis' license was indefinitely suspended and he faced an additional formal hearing on allegations of misconduct.
HELD: The Court accepted the surrender of Jarvis' license and ordered that he be disbarred.
ORDER OF DISBARMENT
IN THE MATTER OF JOHN M. KNOX
NO. 119,254 – JANUARY 11, 2019
FACTS: The Disciplinary Administrator filed a formal complaint against Knox which alleged violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 3.2 (expediting litigation); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); (8.4)(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law); and Rule 207(b) (failure to cooperate in a disciplinary action). The matter arose after Knox was retained to represent clients in a personal injury matter. He failed to perform any of the duties for which he was hired and failed to communicate with his clients. Knox failed to respond once the formal complaint was filed.
HEARING PANEL: The panel determined that although Knox failed to appear he was given appropriate service and notice of the formal hearing. There was adequate evidence to show that Knox committed the violations as alleged in the complaint. The hearing panel found a number of aggravating circumstances, including the vulnerability of the client and Knox's patterns of misconduct. Knox's failure to participate in the disciplinary proceeding meant there were no mitigating circumstances to consider. The Disciplinary Administrator recommended that Knox be disbarred and the hearing panel agreed.
HELD: Knox did not appear at the hearing before the Kansas Supreme Court. The court determined that there was clear and convincing evidence that Knox violated multiple rules of professional conduct. The Disciplinary Administrator continued to recommend disbarment and the court agreed. Knox is disbarred.
ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF SUSAN L. BOWMAN
NO. 109,512 – JANUARY 9, 2019
FACTS: The court suspended Bowman's license to practice law in Kansas on October 18, 2013, for a period of 12 months. Bowman was required to undergo a reinstatement hearing prior to reconsideration being considered. After the hearing, Bowman was reinstated and placed on probation. Bowman filed a motion for discharge from probation in November 2018, along with affidavits demonstrating compliance with the terms of probation. The Disciplinary Administrator did not object.
HELD: After reviewing the motions and affidavits, and the response of the Disciplinary Administrator, the court grants Bowman's motion for discharge from probation.
NAUHEIM V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT – REVERSED and REMANDED
COURT OF APPEALS – AFFIRMED
NO. 114,271 – JANUARY 11, 2019
FACTS: The City of Topeka negotiated with business owners to purchase land in order to build a drainage system for city property. The negotiations resulted in the City's purchase of the property and the businesses' relocation without the use of eminent domain power. After the move, the business owners sued the City for relocation costs under K.S.A. 26-518, which allows for costs when real property is acquired by a condemning authority through negotiation in advance of a condemnation action. The City countered that it never intended to condemn the property and also noted that the business owners were not "displaced persons" under the statute because the property was actually owned by a landlord. The district court granted the City's motion for summary judgment, holding that the business owners were not displaced persons and that the property acquisition was not made in advance of a condemnation. On appeal, the Court of Appeals reversed, finding that the business owners were displaced persons. The panel remanded for further factual findings on the question of whether the purchase negotiations were conducted in advance of a condemnation. The business owners appealed the question of whether a displaced person must prove that a condemning authority threatened condemnation or took affirmative action towards condemnation prior to acquisition. That petition for review was granted. The City did not cross-petition on the Court of Appeals' other findings.
ISSUES: (1) Must a displaced person prove that a condemning authority had an intent to condemn in order to receive statutory relocation assistance
HELD: K.S.A. 26-518 requires a condemning authority to pay relocation costs when an acquisition occurs through negotiation before a condemnation action or when an acquisition actually occurs through condemnation. Nothing in the statute requires the City to pay relocation benefits as part of any public project. Whether a negotiation occurs "in advance of" a condemnation action is a question of fact that must be proven by a preponderance of the evidence.
STATUTES: K.S.A. 2017 Supp. 26-201, -501(a), -518, -518(a); K.S.A. 12-101, Second, -101, Fourth
CRIMINAL PROCEDURE – DISCOVERY – MOTIONS – STATUTES
STATE V. ROBINSON
SEDGWICK DISTRICT COURT – AFFIRMED
No. 116,650 – JANUARY 11, 2019
FACTS: Robinson convicted of capital murder and other crimes. Life prison term without parole imposed with a 247 additional months. Convictions and sentence affirmed in direct appeal. 293 Kan. 1002 (2012). He filed 2015 motion under K.S.A. 60-237 citing Brady v Maryland,373 U.S. 83 (11963) and Giglio v. United States, 405 U.S. 150 (1972), to compel exculpatory discovery of detective who had testified at his trial. District court denied the motion finding no rule of criminal procedure allowing for such a motion, and the State had asserted there was no such information to produce. Robinson appealed.
ISSUE: Postconviction Motion
HELD: District court’s decision is affirmed. Nothing in K.S.A. 2015 Supp. 60-237 permits a postconviction motion to compel discovery in a criminal case.
STATUTES: K.S.A. 2015 Supp. 60-234, -237, -237(a)(1)-(3), -237(a)(3)(B)(iv)
CRIMINAL PROCEDURE – SENTENCES- STATUTES
STATE V. AYERS
WYANDOTTE DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, REMANDED
No. 117,654 – JANUARY 11, 2019
FACTS: Ayers convicted on guilty pleas to multiple felonies related to a murder. Sentencing court imposed consecutive sentences consecutive to a life sentence without possibility of parole, and assessed BIDS fees. Ayers appealed claiming the district judge failed to consider on the record Ayers’ ability to pay the assessed BIDS fees. He also claimed the district judge abused its discretion by ordering most of the on-grid sentences to run consecutively to a life sentence with no possibility of parole.
ISSUES: (1) BIDS. Fees, (2) Sentences
HELD: Pursuant to State v. Robinson, 281 Kan. 538 (2006), the BIDS fee assessment must be vacated and case remanded for reconsideration of that fee. Court rejects State’s argument that there is no additional fact-finding any court must do to resolve the issue of BIDS fess, and that the BIDS fee assessed was “unworkable” as found in restitution statute.
No abuse of discretion in district court’s sentencing in this case. Recognized purposes of sentencing go beyond pure incapacitation, and include retribution for Ayers’ other crimes. Also, sentencing defendants to terms of imprisonment they are unlikely to serve is common.
STATUTES: K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2005 Supp. 22-4513, -4513(b)
CONSTITUTIONAL LAW – CRIMINAL PROCEDURE – MOTIONS – STATUTES
STATE V. SAMUEL
WYANDOTTE DISTRICT COURT – AFFIRMED
No. 116,423 – JANUARY 11, 2019
FACTS: Samuel convicted of second-degree murder. Nineteen years later, citing Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), he filed motion to correct an illegal sentence and claiming his life sentence with mandatory 10-year terms violates the Eighth Amendment because he was 16 years old when he committed the crime. District court summarily dismissed the motion, holding a motion to correct an illegal sentence was not a proper vehicle to challenge a sentence as unconstitutional. Samuel appealed.
ISSUE: Motion to Correct an Illegal Sentence
HELD: District court’s judgment is affirmed. Samuel’s Eighth Amendment claims do not fit within the definition of an “illegal sentence.” They do not implicate the sentencing court’s jurisdiction, and a motion to correct an illegal sentence under the statute cannot raise claims that the sentence violates a constitutional provision.
STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3601(b)(3)-(4); K.S.A> 22-3504, -3504(1); K.S.A. 1996 Supp. 21-3402(a)
CONSTITUTIONAL LAW – EVIDENCE – FOURTH AMENDMENT – SEARCH AND SEIZURE
STATE V. DOELZ
LEAVENWORTH DISTRICT COURT – REVERSED AND REMANDED; COURT OF APPEALS – REVERSED
No. 113,165 – JANUARY 11, 2019
FACTS: Investigating a recent bank robbery by two black males, officer stopped vehicle in which Doelz was a passenger. Officer seized a box he observed on the back seat. When opened, the box contained a digital scale. Methamphetamine then found in search of the vehicle. Doelz arrested and convicted on drug charge. He appealed, claiming district court erred in denying motion to suppress evidence obtained in an unlawful search. Doelz argued in part: (1) the investigatory detention was unlawfully extended once officer discovered all in the car were white males; (B) officer unlawfully seized the digital scale without a warrant or a valid exception to the warrant requirement; and (c) officer lacked probable cause to search the whole vehicle. Court of Appeals affirmed in unpublished opinion. Doelz’s petition for review granted.
ISSUE: Lawfulness of Vehicle Search
HELD: Under totality of the circumstances which included a report the bank robbery car was driven by a white male, reasonable suspicion for the investigatory detention was not unlawfully extended. However, the search of the box retrieved from the backseat was unlawful. Plain-view exception did not permit further search of the box without a warrant or another established exception. Absent consideration of this alleged drug paraphernalia seized from the vehicle at the time of the stop, the remaining circumstances were insufficient to establish a fair probability the vehicle contained contraband. District court thus erred in finding the automobile exception to the warrant requirement applied. Panel’s decision to affirm the district court’s denial of the motion to suppress is reversed. Matter is reversed and remanded for a new trial.
STATUTES: K.S.A. 22-2402
Kansas Court of Appeals
DIVORCE – JUDGMENTS
IN RE MARRIAGE OF STROM
RILEY DISTRICT COURT—AFFIRMED
NO. 118,676—JANUARY 11, 2019
FACTS: The Stroms married in 1986 and divorced in 1995. At the time of the divorce, Eric was retired from the military and was receiving military retirement benefits. In the property settlement agreement, Eric agreed to give Christina a portion of these retirement benefits. Although the agreement was incorporated into the divorce decree, Eric never made any of the required payments. Almost 22 years later, Eric moved to have the district court declare this division of his military retirement pay a void and unenforceable judgment. He claimed the judgment was dormant because Christina failed to file a renewal affidavit within five years of the divorce and did not revive the judgment within seven years of the divorce. Christina countered by moving to enforce and revive the judgment. The district court agreed with Christina and held that any payment due after September 1, 2010, was revived and enforceable. Eric appealed.
ISSUES: (1) Ability to revive the judgment
HELD: Because Eric and Christina were not married for 10 years, she was unable to file a QDRO and obtain direct payment from the military finance center. The only way the judgment could have been fulfilled was by direct payment from Eric. These payments had to be treated like monthly installment payments. As such, the dormancy period for each individual payment started when it became due and collectable. Christina can now execute on the last five years of judgments and can revive the judgments for the two years preceding that.
DISSENT: (Buser, J.) Christina had an obligation to attempt to enforce her judgment. Because she didn't, the judgment is unenforceable and should be extinguished.
STATUTES: K.S.A. 2017 Supp. 60-2403, -2403(a)(1), -2403(c)
EQUITY – JURISDICTION – WATER RIGHTS
GARETSON BROTHERS V. AMERICAN WARRIOR, INC.
HASKELL DISTRICT COURT – AFFIRMED IN PART, DISMISSED IN PART
NO. 117,404 – JANUARY 11, 2019
FACTS: Garetson Brothers owns water rights in Haskell County. It sought injunctive relief to prevent American Warrior, Inc. – the nearest junior rights holder – from impairing its water right. A referee found that American Warrior was substantially impairing Garetson's senior right and entered a temporary and then a permanent injunction prohibiting American Warrior from exercising its junior water rights. American Warrior appealed.
ISSUES: (1) Subject matter jurisdiction; (2) scope of the notice of appeal; (3) grant of permanent injunction
HELD: The amendments to K.S.A. 82a-716 and -717, which require a party to exhaust administrative remedies before seeking an injunction, did not apply retroactively in this matter. The court has subject matter jurisdiction to hear the merits of this appeal because American Warrior was not required to exhaust administrative remedies. In this civil case, the court only has jurisdiction to consider rulings which were specifically listed in the notice of appeal. The notice of appeal did not contain any "catch-all" language that would permit the court to consider additional rulings. A senior water right is still impaired even if the right holder has permission to pull water from a third party. There is no requirement that economic conditions be considered when determining whether a senior rights holder's usage is impaired. There is no evidence that Garetson had unclean hands in its prior water usage.
STATUTES: K.S.A. 2017 Supp. 60-102, -2103(b), 82a-701(d), -716, -717a; K.S.A. 82a-711(c), -716, -717a, -725
Posted By Administration,
Monday, December 17, 2018
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Kansas Supreme Court
IN THE MATTER OF LARA M. OWENS
NO. 118,693—DECEMBER 14, 2018
FACTS: A hearing panel of the Kansas Board for Discipline of Attorneys found that Owens violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 8.1(b) (failure to respond to a demand from a disciplinary authority), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and Rule 207(b) (failure to cooperate in a disciplinary investigation). The complaint arose after clients alleged that Owens failed to inform them of the relevant statute of limitations, failed to timely file lawsuits, and failed to communicate about case status. Owens failed to respond to an initial letter from the investigator and also ignored the follow-up email.
HEARING PANEL: Owens and the disciplinary administrator stipulated to some facts, including Owens' failure to provide her clients with timely updates on the status of their actions and her failure to cooperate in the disciplinary process. Owens was on diversion when some of the alleged misconduct occurred. She was also being treated for anxiety issues. The disciplinary administrator initially agreed to a two-year probation term with an underlying two-year suspension. But Owens failed to perform all of the required steps to put a plan in place, and both the disciplinary administrator and the hearing panel instead recommended a six-month suspension of Owens' license.
HELD: Clear and convincing evidence supports the hearing panel's findings regarding Owens' rule violations. Owens failed to comply with Rule 211(g), which establishes the tasks an attorney must undertake in order to be placed on probation. For that reason, probation is not an appropriate sanction. Based on the nature and duration of Owens' misconduct, a majority of the court imposed a six-month suspension of Owens' license. A minority of the court would have imposed a shorter suspension. Owens must undergo a Rule 219 hearing before her license can be reinstated.
state v. wilson
reno district court—reversed on issue subject to review and remanded
court of appeals—affirmed on issue subject to review
No. 114,567—december 14, 2018
FACTS: Wilson was convicted in 2007. State filed 2015 motion to correct an illegal sentence, arguing it was error not to impose lifetime post release supervision. Citing State v. Freeman 223 Kan. 362 (1978), Wilson claimed lifetime supervision was cruel and unusual punishment. District court granted the state’s motion. Wilson appealed, claiming in part he was denied a fair sentencing hearing when prosecutor misstated facts of Wilson’s case and mischaracterized facts in an unpublished opinion Wilson cited in support of his Freeman claim. A divided court of appeals panel affirmed in an unpublished opinion, finding appellate review was appropriate of claim of prosecutorial error in the context of a hearing on a motion to correct an illegal sentence, and applying test in effect prior to State v. Sherman, 305 Kan. 88 (2016). State’s petition for review was granted. State claimed the prosecutorial error challenge was not preserved for appeal because Wilson did not object to the alleged misstatements during the sentencing hearing.
ISSUES: (1) Preservation of the appeal, (2) prosecutorial error
HELD: Because the state’s petition for review advances only a merit-based challenge to the prosecutorial error question, it waived review of panel majority’s conclusion on preservation.
Prosecutorial error may occur during a sentencing proceeding before a judge. The two-step analytical framework in Sherman applies in both the guilt and penalty phases of any trial —whether before a jury or judge. Applying the Sherman test, there was reversible error at Wilson’s sentencing hearing. Prosecutor’s factual misstatements about Wilson’s underlying crime fell outside the wide latitude afforded when arguing state’s motion to correct an illegal sentence, and the state failed to show there was no reasonable possibility this prosecutorial error contributed to the district court’s decision. State concedes the prosecutor misstated facts in the unpublished case Wilson cited, but no further need in this case to explore alleged error in a prosecutor’s discussion of caselaw. The case is remanded to district court to consider again the question under Freeman—whether imposing lifetime post release supervision on Wilson would be grossly disproportionate to his offense.
STATUTE: K.S.A. 20-3018(b), 21-3501(1), 60-261, -2101(b)
Kansas Court of Appeals
appeals—constitutional law—criminal procedure—
state v. robinson
johnson district court—affirmed in part, reversed in part, and remanded
No. 117,957—december 14, 2018
FACTS: Robinson was convicted of aggravated robbery and kidnapping. His case was initially filed as a juvenile offender proceeding, and then moved to adult court where charges were amended to add kidnapping. On appeal, Robinson claimed he was denied his constitutional right to a speedy trial. He also claimed the state could not add charges once the case moved from juvenile to adult court, and claimed the state’s service of the arrest warrant was so late that the statute of limitations had expired.
ISSUES: (1) Speedy trial—juvenile proceedings, (2) amended charges, (3) statute of limitations
HELD: Speedy-trial rights apply to juvenile-offender proceedings. On facts in this case, Robinson did not lose his constitutional right to a speedy trial by his delayed filing of his motion to dismiss. Delay from the time the state brought formal charges in the juvenile court until Robinson’s trial in an adult proceeding must be analyzed under factors in Barker v. Wingo, 407 U.S. 514 (1972). Case is remanded to district court to make the required factual findings under those factors.
When a criminal charge first made in juvenile proceedings is refiled as an adult proceeding, the state is not precluded from amending the charge. No departure from rule in State v. Randolph, 19 Kan.App.2d 730 (1994). Here, Robinson made no showing that adding the kidnapping charges substantially prejudiced his ability to defend himself at trial.
Statute-of-limitation defenses are waived if not timely raised. Even assuming Robinson could have raised the statute-of-limitation defense after the case had moved to adult proceedings, his failure to do so waived the defense. On remand, the district court may consider the state’s delay in serving the warrant, its cause, and any resulting prejudice when weighing the Barker factors to decide Robinson’s speedy-trial claim.
STATUTES: K.S.A. 2017 Supp. 22-3208(4), 38-2303(d), -2303(g), -2347, -2347(b)(1), -2347(d)(1)-(3); K.S.A. 22-3201(e)
Posted By Administration,
Monday, December 3, 2018
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Kansas Supreme Court
ORDER OF TEMPORARY SUSPENSION
IN RE DAVID P. CRANDALL
NO. 117,910—NOVEMBER 30, 2018
FACTS: A hearing panel of the Board of Discipline of Attorneys found that Crandall violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(b) (communication), 1.5(a) (fees), 1.7(a) (concurrent conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice). An inquiry into Crandall's conduct began when a client wrote the Disciplinary Administrator questioning the reasonableness of Crandall's fees. Around the same time, a district court judge reported Crandall after most of the fees that he requested in a probate matter were rejected. An inquiry into Crandall's fees showed that he was either inexperienced or was doing work in an attempt to justify fees which were substantially higher than those charged by other attorneys in the area.
FACTUAL FINDINGS: Crandall challenged many of the findings made by the hearing panel. The Kansas rules of attorney discipline give the court disciplinary jurisdiction over Kansas-licensed attorneys even if the behavior occurs outside of Kansas. Crandall's failure to follow Supreme Court Rule 6.02 and the Rules of Evidence, which apply in attorney discipline proceedings, means his constitutional and evidentiary issues were not preserved for appeal. There was clear and convincing evidence that Crandall's fees were excessive given the amount of time and labor expended. In representing another client, Crandall's personal interest in having his fee paid conflicted with his duty to advise his client. And he charged an unreasonable fee when the value of the estate decreased significantly while the probate case was pending.
HEARING PANEL: The hearing panel noted Crandall's multiple rule violations, which it attributed to a selfish motive. The panel also noted Crandall's "angry and condescending" tone that was used through disciplinary proceedings. A majority of the hearing panel recommended a 6-month suspension. A minority would recommend a 1-year suspension.
HELD: A majority of the court agreed with the hearing panel and imposed discipline of a 6-month suspension. A minority of the court would have imposed a lesser sanction.
ORDER OF INDEFINITE SUSPENSION
IN RE BRANDON W. DEINES
NO. 119,111—NOVEMBER 30, 2018
FACTS: The Disciplinary Administrator filed a formal complaint against Deines in 2017. He did not file an answer and was temporarily suspended in September 2017. A hearing panel determined that Denies violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.1 (b) (failure to respond to a disciplinary authority), and Rules 207(b) (failure to cooperate in a disciplinary investigation) and 211(b) (failure to file an answer in a disciplinary proceeding). A complaint was filed after multiple instances where Deines failed to act on behalf of his clients, resulting in dismissed cases and harm to his clients.
HEARING PANEL: The temporary suspension was sought because Denies' inaction caused significant harm to his clients. In addition, Deines' failure to participate in the disciplinary process made it difficult to investigate. The panel acknowledged that Deines' behavior was a result of his depression. The Disciplinary Administrator asked for an indefinite suspension. Because Deines' behavior was caused by his depression the hearing panel recommended a 2-year suspension.
HELD: Denies failed to respond to the hearing panel's report and failed to attend the formal hearing on the complaint. The court considered this absence an additional aggravating factor. For that reason, the court imposed an indefinite suspension rather than the 2-year suspension recommended by the hearing panel.
constitutional law–criminal procedure–sentences–statutes
state v. Hayes
johnson district court—affirmed
No. 117,341—november 30, 2018
FACTS: Kansas Supreme Court affirmed Hayes’ conviction of premeditated first-degree murder for a 2010 shooting death, but vacated the hard 50 sentence as unconstitutional and remanded for resentencing. State v. Hayes, 299 Kan. 861 (2014). On remand, district court applied 2013 amended legislation now codified at K.S.A. 2017 Supp. 21-6620, to again impose an enhanced hard 50 sentence. Hayes appealed, claiming retroactive application of K.S.A. 2017 Supp. 21-6620 violated the Ex Post Facto Clause.
ISSUE: Retroactive Application of 2013 Amendments to K.S.A. 21-6620
HELD: Because the 2013 amendments to the sentencing provisions of K.S.A. 21-6620 are procedural in nature and do not change the legal consequences of acts completed before its effective date, the retroactive application of those sentencing procedures do not violate the Ex Post Fact Clause of the United States Constitution. Hayes’ invitation to reverse rulings in State v. Bernhardt, 304 Kan. 460 (2016), State v. Robinson, 306 Kan. 431 (2017), and State v. Lloyd, 308 Kan. 735 (2018), is declined.
STATUTES: K.S.A. 2017 Supp. 21-6620; K.S.A. 2015 Supp. 21-6620; K.S.A. 2013 Supp. 21-6620; K.S.A. 2010 Supp. 22-3717(b)(1); K.S.A. 21-4635, -4706(c)
criminal law- evidence - jury instructions - motions - statutes
State v. Ingham
reno district court—affirmed
court of appeals—affirmed
No. 111,444—november 30, 2018
FACTS: Ingham convicted of possession or use of a commercial explosive. On appeal he claimed: (1) district court erred by denying motion in limine to prevent State from using “pipe bomb” and “improvised explosive device” to describe the beer-can bomb; (2) a sheriff deputy improperly testified his opinion that Ingham combined lawfully obtained items to make an illegal improvised explosive device; (3) a jury instruction wrongfully reworded the statutory definition of “commercial explosive” by equating it to an “improvised explosive device;” (4) trial court should have sua sponte instructed jury on the definition of a consumer firework; and (5) cumulative error denied him a fair trial.
ISSUES: (1) Motion in Limine; (2) “Commercial Explosive” Testimony; (3) Instruction on Elements of Criminal Use of Explosives; (4) Consumer Firework Definition Instruction; (5) Cumulative Error
HELD: Ingham failed to show that the use of words at issue was improper or that it unfairly prejudiced his defense. No abuse of district court’s discretion in allowing prosecution to use words and phrases that correctly and accurately described Ingham’s explosive device.
Assuming without deciding that deputy’s statement was close enough to testimony that Ingham was guilty of the charged crimes, and assuming this error was of constitutional dimension, the error was harmless under facts in this case.
The challenged instruction moved beyond informing jury what the State was required to prove and informed jury that State had proved an improvised explosive device was a commercial explosive. This was error, but under facts in case, the error was harmless.
No error found in district court’s omission of an unrequested instruction that defined a consumer firework. Nothing in the record would have led jury to believe that Ingham’s beer-can explosive was a consumer firework, either in terms of construction or intended usage.
The errors and assumed errors did not affect the two possible jury choices in this case, and even taken in their cumulative effect, did not prejudicially affect the jury’s verdict.
CONCURRENCE (Nuss, C.J.): Affirms Ingham’s conviction, but departs from majority’s rationale regarding the motion in limine. Would hold the district court abused its discretion by allowing repeated references to the “I.E.D.” that Ingham had constructed. Under facts in case, however, cumulative effect of errors is still harmless.
CONCURRENCE (Biles, J., joined by Stegall, J.): Agrees the conviction must be affirmed but would hold: district court did not abuse its discretion in denying the motion in limine; no error in the elements instruction on criminal use of explosives; and the one assumed error of opinion testimony regarding the beer can bomb provides no basis for cumulative error.
CONCURRENCE (Stegall, J.): Agrees with court’s judgments, but registers doubts about statute under which Ingham was convicted. Would welcome briefing on whether K.S.A. 2017 Supp. 21-5814(a)(1) is too vague, indefinite, or overbroad to survive constitutional scrutiny.
DISSENT (Johnson, J., joined by Luckert and Beier, JJ.): Would reverse and remand for a fair trial. Takes exception to majority’s cavalier disregard of the inflammatory connotation associated with the term I.E.D. Would find district court abused its discretion in denying motion in limine, and the error was compounded by deputy’s opinion testimony which improperly stated a legal conclusion on unlawfulness. Scales of justice were further tipped by instruction which erroneously equated “improvised explosive device” with “commercial explosive.” Criticizes majority for engaging in impermissible judicial fact-finding or mere supposition in determining a consumer firework definition instruction was not factually appropriate in this case. Agrees the omission of that instruction was not clearly erroneous, but submits the factual record did not preclude it.
STATUTES: K.S.A. 2017 Supp. 21-5814(a)(1), -5814(c)(2), 60-456; K.S.A. 2012 Supp. 21-5601(b)(1), -5814(a)(1), -5814(a)(2)
state v. rice
wyandotte district court—reversed and remanded
No. 117,322—november 30, 2018
FACTS: Rice’s 1992 conviction for first-degree premeditated murder and hard 40 sentence were affirmed on appeals. Some twenty years later, Rice appealed from his unsuccessful attempt to seek collateral relief on a claim of ineffective assistance of counsel. Court of Appeals affirmed the conviction but found ineffective assistance during the penalty phase. Sentence vacated and remanded for a new penalty phase hearing and resentencing. At resentencing, district court ordered a life sentence with possibility of parole after 15 years. Two months later Rice filed pro se motion to modify or reduce his sentence, arguing he should have been given an updated PSI that accounted for his failing physical condition. He also argued the court could have ordered probation. District court denied modification, holding that Rice received the only sentence available under the law and that his motion for a new PSI was rendered moot. Rice appealed claiming: (1) district court had jurisdiction to modify or reduce his sentence and that reduction is mandatory with a recommendation from the Secretary of Corrections; and (2) district court erred in concluding that probation was not an available option.
ISSUES: (1) Jurisdiction to Modify or Reduce the Sentence on Remand; (2) Availability of Probation
HELD: Statutes applicable to Rice’s motion to modify his pre-KSGA sentence are reviewed. The re-sentencing court was correct in not modifying Rice’s sentence to a lesser term of years, but under State v. Sargent, 217 Kan. 634 (1975), if secretary of corrections unequivocally recommended reducing Rice’s life sentence to a term of years, the court would have to modify it unless best interest of the public would be jeopardized or Rice’s welfare would not be served by the reduction. As to whether the re-sentencing court was required to order an updated PSI that may have resulted in a facility recommendation that Rice should serve a lesser sentence, there is precedent for finding no error in district court’s refusal to do so.
Court of Appeals vacated Rice’s original sentence, so on remand the district court was imposing Rice’s sentence anew. Probation is a possibility for a person convicted of a Class A felony. The 2016 resentencing court abused its discretion by not understanding its own authority and being unable to consider exercising it. On remand for resentencing, district court should exercise its discretion to consider probation on the record.
STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 21-4701 et seq.; K.S.A. 1992 Supp. 21-3401, -3401(c), -4602(3), -4603 et seq., -4603(2), -4603(4), -4604(1), 22-3717(b); K.S.A. 21-4501(a) (Ensley 1988)
appeals—courts—criminal law—criminal procedure—evidence—jury instructions—motions
state v. sims
wyandotte district court—affirmed
No. 115,038—November 30, 2018
FACTS: Sims convicted of premeditated first-degree murder and criminal possession of a firearm. On appeal he challenged: (1) district court’s denial of motion for mistrial after State witnesses violated orders in limine prohibiting mention of Sims’ battery; (2) the sequential ordering of jury instructions for degrees of homicide; (3) district court’s failure to give a limiting instruction to accompany Sims’ stipulation to a prior felony conviction; and (4) cumulative error denied him a fair trial.
ISSUES: (1) Mistrial, (2) Ordering Language in Instructions, (3) Prior Felony Limiting Instruction, (4) Cumulative Error
HELD: On facts of case, district court did not abuse its discretion when it denied Sims’ motion for mistrial. State witnesses made three brief, cryptic references to material prohibited by orders in limine; and the judge recognized the errors and issued a curative admonition in one instance and moved the trial immediately to other topics in the second and third instances.
The simultaneous consideration rule in State v. Graham, 275 Kan. 831 (2003), and the exception to that rule as recognized in State v. Bell, 280 Kan. (2005), are reviewed. Bell’s mutual exclusivity test is problematic, and the simultaneous consideration rule in Graham is is overruled. In this case, the district court’s instructions were legally appropriate.
Even if evidence in a stipulation to a prior felony conviction is subject to K.S.A. 2017 Supp. 60-455 and its requirement that a district judge give a limiting instruction, the failure to give such an instruction in this case was not clear error.
Errors discerned or assumed in this case were discrete and did not compound one another. On the record presented, the totality of circumstances did not prejudice Sims or deprive him of a fair trial.
CONCURRENCE (Beier, J., joined by Lukert and Johnson, JJ.): Concurs with the result and all rationale but for majority’s reasoning regarding sequential and simultaneous jury consideration of degrees of homicide. Agrees that Bell and following cases are infected with a logical fallacy and would overrule them, but would not overrule Graham. Would hold the ordering language in the district court’s instructions was error, but not reversible error standing alone or under the cumulative error doctrine.
STATUTES: K.S.A. 2017 Supp. 22-3414(3), 60-455; K.S.A. 2012 Supp. 21-5109(b); and K.S.A. 22-3423, -3423(c)
constitutional law—criminal law—evidence—jury instructions—statutes
state v. williams
sedgwick district court—affirmed
court of appeals—affirmed
No. 108,394—november 30, 2018
FACTS: Williams forcibly entered residence of a woman he had been dating and where Williams had spent some nights the previous two weeks. Jury convicted him on charges of aggravated burglary, aggravated battery, aggravated assault, and domestic battery. Williams appealed. Court of Appeals affirmed in unpublished opinion. Review granted on six claims as reordered and combined by the court: (1) insufficient evidence supported his aggravated burglary conviction; (2) the aggravated burglary and domestic battery convictions were inconsistent and mutually exclusive; (3) district court erroneously instructed jury on aggravated assault when it told jury the State had to prove Willams used “a deadly weapon, a baseball bat;” (4) district court failed to instruct on lesser included offenses of assault and battery; (5) Kansas’ aggravated battery statute, K.S.A. 2011 Supp. 21-5413(b)(1)(B), is unconstitutionally vague; and (6) cumulative error denied him a fair trial.
ISSUES: (1) Sufficiency of the Evidence, (2) Mutually Exclusive Verdicts, (3) Jury Instruction - Aggravated Assault, (4) Jury Instruction - Lesser Included Offenses, (5) Constitutionality of Statute, (6) Cumulative Error
HELD: No authority supports argument that authority to enter is a property right tied to status of Williams’ residence. Aggravated burglary statute does not require State to prove (or disprove) a burglar’s residence. Whether Williams and the victim both had a property interest in the residence is a closer question because no direct evidence about property interests of the two parties, but there was circumstantial evidence the victim had to give permission for Williams to enter and that he recognized or acquiesced in victim’s right to exclude him. Sufficient evidence presented that Williams entered the house without authority.
Court of Appeals’ elements approach is a valid method for determining if verdicts are mutually exclusive. Under facts in case, Williams did not establish mutually exclusive verdicts.
District court did not err in setting out State’s claim that Williams used baseball bat as a deadly weapon. State v. Sutherland, 248 Kan. 96 (1991), and State v. Sisson, 302 Kan. 123 (2015), are reviewed. Here, district court did not explicitly state a baseball bat is a deadly weapon, but rather stated what the State had to prove. State v. Ingham (this day decided) is distinguished. District courts are cautioned in constructing this type of instruction.
District court erred in failing to instruct on assault and battery as lesser included offenses of aggravated assault and aggravated battery. Instructions on the lesser included offenses were legally appropriate, and under standard in State v. Haberlein, 296 Kan. 195 (2012), were factually appropriate. On facts in this case, however, no clear error.
K.S.A. 2011 Supp. 21-5413(b)(1)(B) is not unconstitutionally vague. Individuals of ordinary intelligence can understand what is meant by “can be inflicted” language. Court of Appeals’ reasoning in cases rejecting constitutional challenges to the statute is approved.
Cumulative effect of the two instructional errors did not deny Williams a fair trial.
CONCURRENCE (Rosen, J., joined by Nuss, C.J. and Stegall, J.): Agrees the convictions should be affirmed, but disagrees with majority’s opinion that district court was required to instruct jury on the lesser included offenses. Consistent with his concurring and dissenting opinions in cases relating to application of K.S.A. 22-3414(3), no error in not instructing jury on lesser included offenses of misdemeanor battery and misdemeanor assault.
CONCURRENCE (Johnson, J., joined by Beier, J.): Would hold the district court’s aggravated assault elements instruction was erroneous, but even if jury had been clearly told to find the baseball bat met the definition of a deadly weapon, the result would have been the same.
STATUTES: K.S.A. 2017 Supp. 20-3018(b), 22-3414(3), 60-261; K.S.A. 2011 Supp. 21-5109(b), -5412, -5413(b)(1)(B), -5414, -5414(c)(1), -5807(b); and K.S.A. 77-201, - 201, Twenty-third
Court of Appeals
state v. jones
reno district court—vacated and remanded
No. 118,268—November 30, 3018
FACTS: Jones convicted of failing to register as a drug offender. Prison term imposed with a 24-month period of post-release supervision, and a dispositional departure for 36 months probation. Probation revoked in 2014. Revocation sentence pronounced from bench was 51-month prison term with no mention of post-release supervision, but journal entry of probation revocation ordered 85-month prison term with 24-months post-release supervision. Jones appealed. Court of Appeals ordered remand, finding the sentence effective when pronounced from the bench. On remand, district court filed journal entry nunc pro tunc ordering 51-month prison term with 24-month post-release supervision. Jones filed motion to correct an illegal sentence, arguing the post-release supervision term should be vacated. District court denied the motion. Jones appealed, arguing in part for first time that district court’s silence on the postrelease supervision term at the revocation hearing constituted a lawful modification of her sentence under K.S.A. 2017 Supp. 22-3716(b). Supplemental briefing ordered on what effect, if any, K.S.A. 2017 Sup. 21-6804(e)(2)(C) had on the appeal.
ISSUE: (1) Probation Revocation Sentence; (2) K.S.A. 2107 Supp. 21-6804(e)(2)(C)
HELD: Based on State v. McKnight, 292 Kan. 776 (2011), State v. Sandoval, 308 Kan. 960 (2018), and State v. Roth, 308 Kan. 970 (2018), district court erred when it later included a 24-month post-release supervision term in the journal entry. Although the district court may not have intended to vacate the postrelease provision term upon revoking Jones’ probation, the court was authorized to do so and the new lawful sentence was effective when pronounced from the bench.
K.S.A. 2017 Supp. 21-6804(e)(2)(C) does not apply to a sentence that is lawfully modified at a probation revocation hearing under K.S.A. 2017 Supp. 22-3716(b) because a postrelease supervision term is not required by law as part of the sentence when the district court sentences a defendant anew after revoking probation. Here, the district court imposed a lawful lesser sentence of a 51-month prison term with no post-release supervision period. This sentence was effective when pronounced from the bench at the revocation hearing and cannot later be modified.
STATUTES: K.S.A. 2017 Supp. 21-6804(e)(2)(C), -6805(e)(2)(C), 22-3504, -3716(b), -3716(d)(1)
Posted By Administration,
Monday, November 26, 2018
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Kansas Supreme Court
ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF ROSIE M. QUINN
NO. 119,148—NOVEMBER 21, 2018
FACTS: Quinn was found to be in violation of KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty or fitness). She was convicted of multiple federal felonies after failing to pay income taxes. Quinn's law license was temporarily suspended after she self-reported the convictions. While that disciplinary proceeding was pending, Quinn asked to have her status changed to disability inactive status. That request was granted, with the understanding that Quinn was required to obtain an independent mental health evaluation. Quinn failed to obtain that evaluation and as a result, her license was transferred back to a temporary suspension.
HEARING PANEL: The hearing panel noted Quinn's history of discipline and the nature of her convictions. The panel also cited Quinn's mental health issues and reputation in her community as mitigating factors. The disciplinary administrator's office recommended that Quinn be indefinitely suspended with the suspension made retroactive to three years prior to the date of the final hearing report. The hearing panel noted that Quinn presented compelling evidence of rehabilitation and relied heavily on the mitigating evidence in recommending that Quinn's license be suspended for three years, with that suspension made retroactive to October 5, 2011. The hearing panel believed that Quinn should be eligible for reinstatement without further proceedings.
HELD: The court adopted the hearing panel's findings and conclusions. The only question for the court to consider is whether Quinn should be required to undergo a reinstatement hearing before being allowed to return to practice. A majority of the court held that Quinn should be indefinitely suspended with an effective date of October 2011. Before being reinstated, Quinn must complete various tasks including a bar exam review course and continuing legal education hours. A minority of the court would have disbarred Quinn.
HARSAY V. UNIVERSITY OF KANSAS
DOUGLAS DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED
NO. 114,292—NOVEMBER 21, 2018
FACTS: The University of Kansas hired Harsay to a tenure-track position in 2004. She began the tenure review process in 2009. Peer reviewers were hesitant to give unqualified recommendations for tenure; there were concerns about insufficient scholarship activities leading to an inability to secure funding. Nevertheless, the department-level committee recommended that Harsay receive tenure. The College Committee disagreed and voted to reject Harsay's application. That decision was ratified by the University Committee. Harsay appealed to the university but the chancellor upheld the decision to deny tenure. Harsay filed a timely petition for judicial review, but it was dismissed for failure to prosecute. Using the savings statute, Harsay refiled the action. The district court denied on the merits Harsay's challenge to the university's decision. The court of appeals reversed, noting inaccuracies in the College Committee's report and expressing concerns about the adequacy of the university's factual findings. The university's petition for review was granted.
ISSUES: (1) Savings statute; (2) substantial evidence
HELD: Provisions of the Code of Civil Procedure can apply to actions taken under the KJRA. And the plain language of K.S.A. 60-518 allows it to apply to any action. Although the reports of various tenure committees were short on details and contained errors, there is adequate support in the record as a whole for the ultimate decision to deny tenure to Harsay.
CONCURRENCE (Goering, D.J. assigned): There is substantial evidence in the record as a whole to support the university's decision on Harsay's tenure application. But the panel erred by finding that K.S.A. 60-518 can apply to cases brought under the KJRA.
STATUTES: K.S.A. 2017 Supp. 77-613, -621(c)(4), -621(c)(7), -621(c)(8), -621(d); K.S.A. 60-518
constitutional law—criminal law—Fourth Amendment—statutes
state v. Evans
dickinson district court—affirmed and remanded
No. 119,458—November 21, 2018
FACTS: An officer conducted a warrantless search of Evans’ purse and wallet after an ambulance took Evans from auto accident scene. Evans was arrested and charged with drug offenses after officer found methamphetamine and drug paraphernalia in zippered pocket of the wallet. Evans filed motion to suppress, alleging the search violated the Fourth Amendment. State argued the warrantless search was valid under the plain-view exception and the officer’s administrative caretaking function of locating Evan’s driver’s license to complete an accident report. District court disagreed and granted the motion to suppress. State filed interlocutory appeal.
ISSUES: (1) Warrantless search—community caretaking function, (2) warrantless search— duty to complete accident report
HELD: District court’s judgment was affirmed. The caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Both Cady v. Dombrowski, 413 U.S. 433 (1973), and South Dakota v. Opperman, 428 U.S. 364 (1976), support caretaking/ inventory searches conducted under standard police procedures. Here, no evidence established the standard procedures of the police or county sheriff’s office. Accordingly, Dombrowski, Opperman and related cases do not support State’s contention that the search of Evan’s purse and wallet fits a well-delineated exception to the warrant requirement.
State v. Canaan, 265 Kan. 835 (1998), which relied on plain view and inventory search exceptions to the warrant requirement, did not create a new exception allowing a search simply because officers have a duty to complete the accident report. State failed to meet burden of establishing the inventory exception, and under facts in this case the drug evidence was not in plain view. Nor did the circumstances present an exigency or an emergency that required immediate verification of Evans’ identity or give rise to the emergency doctrine exception. Kansas statutes allow drivers a reasonable time to produce their own driver’s license, and legislature did not impose a duty on officers that would justify invading privacy guaranteed by Fourth Amendment.
STATUTES: K.S.A. 2017 Supp. 8-1604, -1611, -1611(a), -1611(a)(2), -1612, -1612(a), -1612(b), 22-3603; K.S.A. 8-244, 20-3018(c)
criminal law—criminal procedure—evidence—
state v. haygood
wyandotte district court—affirmed
No. 115,591—november 21, 2018
FACTS: A jury convicted Haygood of premeditated first-degree murder and criminal possession of a firearm. On appeal he claimed error in the admission of his long-term girlfriend’s testimony about prior domestic violence, and the denial of his request for jury instructions on the affirmative defense of self-defense and the lesser-included offense of involuntary manslaughter. Haygood also claimed the prosecutor, in closing argument, misstated the facts or law, argued facts not in evidence, commented on witness credibility, and attempted to shift the burden of guilty to the defendant.
ISSUES: (1) Admission of K.S.A. 60-455 evidence, (2) prosecutorial error in closing argument, (3) instructions on self-defense and involuntary manslaughter
HELD: Three-part test in State v. Gunby, 282 Kan. 39 (2006), is stated and applied, finding the trial court did not err in admitting the prior domestic violence evidence to show motive.
Prosecutor’s comments and arguments contained facts that were either placed in evidence or that were reasonably inferred from trial evidence. Although some statements were inarticulately phrased, prosecutor did not misstate the law. No burden-shifting was implied from State’s closing argument, and no merit to claim that prosecutor impermissibly accused Haygood of lying.
In light of K.S.A. 2017Supp. 21-5108(c), as amended in 2010, Haygood was entitled to an instruction on self-defense affirmative defense because his testimony was competent evidence that could allow a reasonable juror to conclude he was entitled to defend with deadly force. District court erred by denying Haygood’s request for an instruction on self-defense, but the error was harmless in this case. Likewise, even if an involuntary manslaughter lesser included offense instruction is assumed to be factually appropriate, the failure to give a lesser included offense instruction was harmless error.
CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Stegall, J.): Concurs with the result but departs from majority’s reasoning regarding the self-defense instruction. Disagrees that a defendant’s solitary declaration that he or she committed a crime in self-defense will always satisfy the competent evidence standard described in K.S.A. 2017 Supp. 21-5108(c). Also disagrees with majority’s suggestion that the 2010 statutory provision meaningfully impacts this analysis. Under facts in this case, no rational fact-finder could reasonably conclude that Haygood acted in self-defense. Would find no error in trial court’s denial of a self-defense instruction.
STATUTES: K.S.A. 2017 Supp. 21-5108(c), -5222, -5405(a)(4); K.S.A. 21-5108
criminal procedure—jury instructions—statutes
state v. pulliam
wyandotte district court—affirmed
court of appeals—affirmed
No. 113,493—November 21, 12018
FACTS: Pulliam was convicted of voluntary manslaughter (of Eisdorfer), second-degree murder (of Burton), and criminal possession of a firearm. He appealed, claiming in part the jury should have been instructed on a theory of imperfect self-defense involuntary manslaughter as a lesser included crime for the charge of second-degree murder. Court of appeals affirmed, holding such an instruction was not factually appropriate because State v. Houston, 289 Kan. 252 (2009), required an unintentional killing for involuntary manslaughter, and there was no evidence Pulliam’s killing of Burton was unintentional. Pulliam’s petition for review granted on this one issue.
ISSUE: Jury instruction on lesser included offense of imperfect self-defense involuntary manslaughter
HELD: Court of appeals’ decision is affirmed, but on a different rationale. Pulliam’s jury instruction claim was reviewed for clear error in this case. Court of appeals’ decision relied on outdated law because Houston was based on an earlier version of the crime defining statute. The amended involuntary manslaughter statute and a new culpable mental states statute, K.S.A. 2017 Supp. 21-5202, govern this case. Conviction of involuntary manslaughter under an imperfect self-defense manslaughter theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a reckless or unintentional killing. On evidence in this case, a lesser included offense instruction on the imperfect self-defense form of involuntary manslaughter was legally and factually appropriate. District court erred in not giving it, but no clear error found. Pulliam’s second-degree murder conviction is affirmed.
STATUTES: K.S.A. 2017 Supp. 21-5109(b)(1), -5202(a)-(j), -5203(b), -5402(a)(2), -5405(a)(1)-(4), 22-3414(3); K.S.A. 21-3201, -3201(b)-(c), -3404(c), -3761(a)(2)
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Tuesday, October 16, 2018
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Kansas Supreme Court
ORDER OF PUBLISHED CENSURE
IN RE MICHAEL J. STUDTMANN
NO. 118,992 – OCTOBER 12, 2018
FACTS: A hearing panel determined that Studtmann violated Kansas Rules of Professional Conduct 1.2(c) (scope of representation), 1.5 (fees), 1.7(a) (conflict of interest), 1.8(f) (accepting compensation for representation of client from someone other than the client), and 1.16(d) (termination of representation). The complaint arose after Studtmann agreed to represent two individuals who were involved in a fatality automobile accident. Studtmann represented both clients without discussing with them the potential for a conflict of interest. Studtmann also spoke with his client's parents without obtaining her consent to release information to them. Both clients discharged Studtmann and obtained new counsel after a week of representation. Studtmann failed to promptly refund unearned fees to the client's parents.
HEARING PANEL: Based on the record and on stipulations made by the parties, the hearing panel determined that the fees charged by Studtmann during his time on this case were unreasonable. The panel also found numerous conflicts with Studtmann's joint representation and his dealings with his client's parents. The hearing panel believed that some of Studtmann's behavior was motivated by selfishness and it found that some of his answers at the hearing were misleading or deceptive. After noting several mitigating circumstances, the disciplinary administrator recommended discipline of a 90 day suspension. Studtmann made an initial request for probation before asking for an informal admonition. The hearing panel recommended discipline of published censure and also believed that Studtmann should be required to refund the entire retainer amount.
HELD: There were no exceptions to the hearing panel's final report. After noting that Studtmann had already refunded fees and agreed to an audit of his trust account, the disciplinary administrator recommended discipline of published censure. A majority of the court agreed. A minority of the court, troubled by the findings of Studtmann's dishonest testimony, would impose the 90-day suspension initially requested by the disciplinary administrator.
Kansas Court of Appeals
EVIDENCE—SEARCH AND SEIZURE
STATE V. SALAZAR
MONTGOMERY DISTRICT COURT – REVERSED AND REMANDED
NO. 119,070 – OCTOBER 12, 2018
FACTS: A motorcyclist was killed after he was hit by a van driven by Salazar. After the accident, Salazar was upset but gave law enforcement permission to get her driver's license out of her vehicle. While looking for the license, officers found Salazar's cell phone on the floor. An officer picked it up and looked at it; when asked by another officer, he said that he was just trying to determine if Salazar was texting at the time of the accident. During her later interrogation, Salazar gave officers permission to search her phone. That investigation showed that Salazar sent a text at the exact time of the accident. Officers eventually requested and received a search warrant for Salazar's phone. Salazar was charged with multiple counts, including one count of vehicular homicide. She filed a motion to suppress, claiming that the officer's initial search of her cell phone was illegal, tainting any further evidence recovered from the phone. The district court granted the motion, finding that officers conducted an invalid warrantless search of the phone. The State appealed.
ISSUES: (1) Plain view exception; (2) Attenuation doctrine; (3) Exclusionary rule
HELD: A warrant is generally required before the search of a cell phone. The officer's search of Salazar's phone was unreasonable unless an exception to the warrant requirement applies. The district court made no findings about whether the officer pressed a button on Salazar's phone in order to see the text messages, or whether they were immediately visible. But the district court's implicit finding that the officer did manipulate the phone into showing messages is supported by substantial competent evidence. Because the officer pressed a button in order to activate the phone, the plain view exception does not apply. The district court did not make the findings necessary to determine whether Salazar's consent to search her phone was voluntary and remote enough to allow for application of the attenuation doctrine. The attenuation doctrine can only apply if Salazar's consent was voluntary, and further findings of fact are required before that can be determined.
STATUTES: No statutes cited.
search and seizure
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Tuesday, October 9, 2018
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Kansas Supreme Court
ORDER OF DISBARMENT
IN THE MATTER OF JEAN MARIE BOBRINK
NO. 14,366—OCTOBER 3, 2018
FACTS: Jean Marie Bobrink, an attorney licensed to practice law in Kansas, voluntarily surrendered her license. At the time of surrender, there were two disciplinary complaints pending and she was operating under an active diversion agreement. Ms. Bobrink was disbarred in Missouri in January 2018.
HELD: The Court accepted the surrender and Ms. Bobrink is disbarred.
ORDER OF DISBARMENT
IN THE MATTER OF ROBERT E. ARNOLD, III
NO. 22,544—OCTOBER 3, 2018
FACTS: Robert E. Arnold voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was being investigated by the Disciplinary Administrator. The conduct which prompted the investigation in Kansas served as the basis for Mr. Arnold's disbarment in Missouri in June 2018.
HELD: The court accepted the surrender, and Mr. Arnold is disbarred.
IN RE ADOPTION OF C.L.
WYANDOTTE DISTRICT COURT–REVERSED and REMANDED
COURT OF APPEALS—REVERSED
NO. 117,723—OCTOBER 5, 2018
FACTS: C.L. was born in September 2016. Mother was not aware that she was pregnant. She placed C.L. for adoption while still in the hospital, and he was placed with custodial parents who hoped to adopt him. A social worker contacted the man who mother believed was the biological father. He was told about the baby and was asked to relinquish his parental rights. Father instead obtained counsel and sought to establish paternity; genetic testing later confirmed that father is C.L.'s biological parent. The potential adoptive parents filed an adoption petition and asked the court to terminate father's rights. Father appeared in that action and opposed adoption. The district court terminated father's parental rights, finding that father abandoned C.L. after learning of his birth. The court of appeals affirmed that finding and father's petition for review was granted.
ISSUE: (1) Sufficiency of the evidence to show support of the child
HELD: The facts established in the district court show that father made adequate efforts to support and meet his child. The putative adoptive parents made untrue allegations in their adoption petition, and the adoption petition prevented father from making efforts to support his child. This case must be remanded so that C.L. can begin to be integrated in to father's home.
STATUTE: K.S.A. 2016 Supp. 59-2921(a), -2136(h)(1), -2136(h)(1)(A), -2136(h)(1)(C), -2136(h)(2)(A), -2136(h)(2)(B)
state v. weekes
saline district court—Case Remanded
court of appeals—reversed
No. 115,739—october 5, 2018
FACTS: Weekes was convicted of unlawful possession of hydrocodone and sentenced to 12 months’ probation with underlying 30-month prison term. State later filed motion to revoke probation. Weeks filed motion pursuant to State v. McGill, 271 Kan. 150 (2001), seeking a reduced underlying prison term or to be allowed to serve sentences concurrently. District court revoked probation, denied the motion to modify the sentence, and imposed the original underlying sentence. Weekes appealed. In an unpublished opinion, court of appeals dismissed the appeal for lack of jurisdiction, relying on State v. Everett, No. 111168, 2015 WL 4366445 (Kan.App.2015)(unpublished), rev. denied 305 Kan. 1254 (2016), and citing K.S.A. 2016 Supp. 2016 Supp. 21-6801(c)(1). Weekes’ petition for review granted.
ISSUE: Appellate jurisdiction
HELD: Review was limited to issue of appellate jurisdiction. Logical fallacies in Everett rationale are identified. Panel had jurisdiction to review whether the district court abused its discretion in denying Weekes’ motion for a post-probation-revocation sentence modification, pursuant to K.S.A. 2017 Supp. 22-3716(c)(1)(E), even if the denial results in the imposition of an original sentence that was a presumptive sentence for the crime of conviction. The panel’s dismissal for lack of jurisdiction is reversed. Appeal was reinstated and remanded to court of appeals for consideration on the merits.
STATUTES: K.S.A. 2017 Supp. 21-6803(q), 22-3716(c)(1)(E); K.S.A. 2016 Supp. 21-6820(c)(1)
appeals—constitutional law—criminal law—criminal procedure—evidence fourth amendment—prosecutors
state v. lowery
shawnee district court—affirmed
No. 115,377—october 5, 2018
FACTS: Related to a shooting between two vehicles on victims’ wedding night, Lowery was convicted of charges including premeditated first-degree murder of Davenport-Ray, attempted premeditated first-degree murder of Ray, and unlawful discharge of a firearm at an occupied building. On appeal, Lowery claimed: (1) prosecutorial error during trial and in closing argument; (2) he was denied his right to be present when district court held hearing on Lowery’s motion in limine and compelled a State witness to testify pursuant to grant of immunity; (3) district court erred by instructing jury on law of aiding and abetting without modifying the standard instruction; (4) his post-arrest statements to law enforcement officers were involuntary and should have been suppressed; (5) the partially redacted video recording of his interview with law enforcement officers contained inadmissible evidence; (6) prosecutor’s questions to witness went beyond the scope of defense counsel’s direct examination and elicited hearsay testimony; (7) insufficient evidence supported his convictions; and (8) cumulative error denied him a fair trial.
ISSUES: (1) Prosecutorial error, (2) right to be present at every critical trial stage, (3) aiding and abetting instruction, (4) voluntariness of a defendant’s statements to law enforcement, (5) failure to redact evidence from defendant’s video-recorded statement, (6) hearsay evidence beyond the scope of direct examination, (7) sufficiency of the evidence, (8) cumulative error
HELD: Defendant cannot circumvent contemporaneous objection requirements of K.S.A. 60-404 by characterizing an appellate issue as prosecutorial error rather than evidentiary error. No review of evidentiary claims that were not preserved for appeal. No abuse of district court’s discretion in denying Lowery’s motion for a new trial based on prosecutor’s comments and gestures. No error in prosecutor’s use of puzzle and picture analogies in this case which is factually distinguished from State v. Crawford, 300 Kan. 740 (2014), and State v. Sherman, 305 Kan. 88 (2016). Lowery’s claim of prosecutorial error for violating trial court’s orders in limine is unavailing. While a close call, prosecutor did not comment on witness credibility. Prosecutor improperly used “golden rule” argument in closing argument, and egregiously misstated the DNA evidence and testimony of the DNA analyst, but on facts in this case these were not reversible errors.
Kansas Supreme Court has not addressed whether an immunity hearing is a critical stage of the proceedings at which the defendant must be present, but other courts have found the defendant has no such right. However, district court violated Lowery’s statutory rights by conducting a hearing on Lowery’s motion in limine without Lowery or defense counsel present. Under facts in this case, the error was harmless.
Lowery’s instructional error claim is not reviewed because Lowery invited the error.
There is no express requirement in Miranda that a defendant be informed of the right to stop answering questions at any time and terminate the interview. Instead, this is part of the totality of the circumstances to be reviewed in the voluntariness calculus. Here, Lowery’s statements to law enforcement were freely and voluntarily made. District court’s Jackson v. Denno ruling is affirmed.
New allegations of material that should have been redacted were not preserved for appellate review. On claims properly before the court, the jury should not have heard officer comments on the possible sentence imposed if Lowery were to be found guilty, officer explanations on the law of felony murder, or statements implying that Lowery had a criminal history. But it is presumed the jury followed the instruction to not consider the ultimate disposition in this case.
Prosecutor’s questions were not outside the scope of direct examination. Officer’s testimony did not constitute inadmissible hearsay evidence, and no reasonable probability that evidence from this testimony affected the outcome of trial.
Evidence viewed in light most favorable to the State was sufficient to support Lowery’s convictions.
The three prosecutorial errors found in this case were harmless beyond a reasonable doubt, and the fairness of Lowery’s trial was not impacted by his absence at the motion hearing. Evidence against Lowery was not overwhelming, but circumstantially strong enough that cumulative effect of the errors did not deprive Lowery a fair trial.
STATUTES: K.S.A. 2017 Supp. 21-5210(b), 22-3208(7), -3501, -3601(b)(3)-(4), 60-261, 455, -455(a), -460; K.S.A. 22-3403(3), 60-404, -421, -455, -446, -447
attorneys—criminal law—criminal procedure—ethics—evidence judges—juries—
state v. miller
douglas district court—affirmed
No. 114,373—october 5, 2018
FACTS: Miller was convicted of premeditated first-degree murder of his wife. State v. Miller, 284 Kan. 682 (2007)(Miller I). In 2012 unpublished opinion, court of appeals granted Miller post-conviction relief and ordered a new trial. Kansas Supreme Court affirmed that decision. Miller v. State, 298 Kan. 921 (2014)(Miller II). On retrial, Miller again convicted of premeditated first-degree murder. Miller appealed. As structured by the court, Miller claims trial court erred by: (1) denying motion for change of venue given extensive publicity surrounding first trial and corresponding pretrial publicity on retrial; (2) denying Miller’s for-cause challenges to 10 prospective jurors who knew of Miller’s prior conviction and/or had a preconceived opinion he was guilty; (3) denying Miller’s motion to first have jury determine if victim’s death was homicide, and then have same jury determine the degree of homicide; (4) denying portion of proposed instruction that limited jury’s consideration of dating site evidence as evidence of homicide; (5) denying motion to disqualify the district attorney’s (DA’s) office based on conflict of interest with witness and because office in possession of information from Miller’s first trial that was protected by attorney-client privilege; and (6) three times advancing an interpretation of the evidence that was not supported by the record. Miller also claimed (7) that medical evidence from State’s forensic pathologist was insufficient to establish the victim had been killed by another. Miller further claimed the trial court erred by: (8) denying motions for mistrial after prosecutor mentioned pornography in violation of in limine order, and after State’s rebuttal witness testified outside the scope of permissible rebuttal; (9) admitting evidence Miller sought to exclude through motion in limine of Miller’s extramarital affair, Miller accessing dating websites, Miller being the beneficiary of wife’s life insurance policy, and graphic photographs; and (10) granting State’s motion on first day of retrial to admit Miller’s testimony in Miller I without giving timely notice of intent to introduce this prior testimony. Finally, Miller claimed cumulative error denied him a fair trial.
ISSUES: (1) Change of venue, (2) trial court’s denial of for-cause juror challenges, (3) Denial of bifurcation request, (4) denial of complete requested limiting instruction, (5) disqualification of district attorney’s office, (6) judicial misconduct, (7) state’s failure to prove a homicide, (8) denial of mistrial motions, (9) motions in limine and admissibility of evidence, (10) admission of defendant’s prior trial testimony, (11) cumulative error
HELD: Millers’ constitutional challenge to venue fails Factors identified by United States and Kansas supreme courts are reviewed and applied, finding no presumed or actual prejudice from pretrial publicity in this case. Circumstances in State v. Carr, 300 Kan. 1 (2007), are compared.
Defense arguments regarding use of peremptory challenges, and trial court’s refusal to grant for-cause challenges, are examined. Even if district court erred in refusing to strike one prospective juror (A.S.) for cause, under facts in this case there was no showing of prejudice, and no violation of Miller’s constitutional or statutory rights.
Miller’s bifurcation claim is evidentiary rather than constitutional. District court did not err in refusing to bifurcate trial by separate elements.
No showing of error in district court’s modification of the proposed limiting instruction.
Under facts in this case, which included defendant’s son living rent free with an Assistant District Attorney (ADA), and DA’s office acquiring but not disclosing possession of a day planner of Miller’s attorney in first trial, district court did not abuse its discretion in refusing to disqualify the DA’s office based on conflict of interest or DA’s unprofessional handling of the planner. Kansas Rules of Professional Conduct discussed.
Judicial misconduct claim fails. Taken in context, trial judge’s response was not erroneous, much less misconduct.
Miller did not object to State forensic pathologist’s cause-of-death opinion until basis for that opinion had been thoroughly parsed and interminably repeated through multiple examinations by both parties. Failure to make timely contemporaneous objection defeats review of the merits of this evidentiary claim.
Prosecutor’s mention of pornography was error, but error was harmless in this case. Likewise, if any error in rebuttal witness testimony, the error was harmless.
In following precedent set in Miller I, district court did not err by admitting evidence of extramarital affair for purpose of motive. Under facts in this case, probative value of detective’s testimony about Miller accessing dating websites is tenuous but any error was harmless, and no error in admitting evidence of life insurance. District court’s admission of graphic photographs is affirmed based on law of the case established in Miller I.
Trial court’s decision to allow Miller’s retrial counsel to inspect Miller I testimony and respond with arguments was a reasonable remedy of the discovery violation. Under circumstances in this case, district court did not abuse its discretion in refusing to continue or suspend the retrial for a separate hearing on State’s motion to admit the Miller I testimony.
Viewed in context of the entire record, Miller was not so prejudiced by cumulative effect of errors declared in this case as to deny him a fair trial.
DISSENT (Johnson, J.): Notwithstanding practical and emotional costs of yet another retrial that likely again would result in a conviction, Constitutions require that result to maintain integrity of our criminal justice system. Cannot condone the conviction in this case because the retrial was fundamentally unfair. Unfairness starts with retrial’s venue, citing his dissent in Carr. Allowing juror A.S. to sit on retrial jury was fundamental error. Testimony about Miller accessing dating websites had no logical connection to a relevant fact that would make it more likely that Miller killed his wife. Imprudent to apply law of the case doctrine to uphold admission of graphic photographs. And testimony of State’s forensic pathologist should have been considered in assessing impact of cumulative error.
DISSENT (Wurtz, J., appointed to hear case vice Justice Stegall): Agrees that if an erroneous expert opinion on cause of death is added to the cumulative error analysis in this case, prejudice caused by cumulative effect of all errors denied Miller a fair trial. Also agrees that expert opinion on the cause of death was not based on medical evidence but rather on the doctor’s factual determination that Miller had lied about being in the room when his wife died. Would find Miller’s objection to expert opinion on the cause of death was sufficient to preserve the question for appellate review on the merits.
STATUTES: K.S.A. 2017 Supp. 22-3212(a)(1), -3212(i), -3601(b)(3), 60-242(b), -426, -426(b); K.S.A. 2014 Supp. 60-226(b)(6)(C), -226(b)(6)(C)(ii); K.S.A. 22-2101 et seq., -2616(1), -3423(1)(c), 60-101 et seq., -404, -407(f), -445, -456, -1507
criminal law—criminal procedure—evidence—jury instructions—prosecutors
state v. anderson
bourbon district court—affirmed
No. 116,710—october 5, 2018
FACTS: Anderson was convicted of child abuse and felony murder in shaken-baby case. On appeal he claimed: (1) district court failed to give multiple acts instruction to ensure jury unanimity as to whether Anderson injured victim by throwing down on the couch or by shaking; (2) district court erroneously admitted testimony under K.S.A. 60-455 of Bodine—a person who had previously lived with Anderson and wife—about Anderson’s prior aggressive behavior toward the child victim; and (3) during closing argument the prosecutor engaged in speculation not fairly based on the evidence by suggesting Anderson believed the State’s doctors were out to get him for the fun of it, by saying Anderson was trying to manipulate jury by calling the victim his son, and by saying Anderson lost his temper which resulted in a child with massive brain injury. Anderson also claimed cumulative error denied him a fair trial.
ISSUES: (1) Refusal to give a requested unanimity instruction, (2) admission of K.S.A. 60-455 evidence, (3) prosecutorial error in closing argument, (4) cumulative error
HELD: Court reviews distinction between multiple acts and alternative means. Here, jury did not have to choose between multiple acts. District court did not err in declining to give jury a unanimity instruction.
Under facts in this case, any error district court may have made in allowing K.S.A. 60-455 testimony of Bodine about Anderson’s prior treatment of the child victim was harmless.
Prosecutor’s comments about doctors’ motives constitute error. Prosecutor arguing that jury should attribute a bad motive to Anderson referencing the victim as his son was error. And prosecutor’s remarks about Anderson losing his temper were not supported by the record, and argued facts that were contrary to the evidence. Nonetheless, under facts in this case, no reasonable possibility that the absence of prosecutor’s erroneous comments would have changed outcome of the credibility and expert battles that Anderson lost.
Cumulative error claim fails.
STATUTE: K.S.A. 2017 Supp. 22-3601(b)(3), 60-261, -455, -455(b)
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Monday, September 24, 2018
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Kansas Supreme Court
ORDER OF DISBARMENT
IN RE MICHAEL P. PELOQUIN
NO. 19,846 — September 18, 2018
FACTS: In a letter dated September 13, 2018, Michael P. Peloquin voluntarily surrendered his license to practice law. At the time of surrender, a formal complaint was pending alleging violations of: KRPC 1.3 (diligence); 1.4 (communication); 1.16 (termination of representation; 3.2 (expediting litigation); 5.5 (unauthorized practice of law); 7.3 (client solicitation); and 8.4 (professional misconduct). There were also allegations that Peloquin violated Supreme Court Rule 218. The court accepted the surrender of Peloquin's license, and he is disbarred.
BREACH OF TRUST—DAMAGES
ELLIS LIVING TRUST V. ELLIS LIVING TRUST
SEDGWICK DISTRICT COURT—REVERSED and CASE REMANDED
COURT OF APPEALS—REVERSED
NO. 113,097—SEPTEMBER 21, 2018
FACTS: Alain Ellis and her husband, Dr. Harvey Ellis, both executed living trusts. After Alain died, Harvey served as trustee of Alain's trust. The terms of Alain's trust provided that all income went to Harvey during his life. Upon his death, the trust was to be divided equally between the Ellises' two sons, with each receiving income from the principal. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. After Harvey died, the improper transfers were discovered and over $1 million was returned to Alain's trust. Alain's trust and the trust beneficiaries sought additional damages and filed suit against Harvey's trust, Harvey's estate, and individuals who advised Harvey while he was still living. Before trial, the district court ruled that Alain's trust could not seek punitive damages from Harvey's estate because Harvey was deceased. It also concluded that Alain's trust was not entitled to recover double damages. Alain's trust appealed these rulings to the court of appeals, which affirmed the district court's rulings. Alain's petition for review was granted on these two issues.
ISSUES: (1) Punitive damages from a deceased trustee; (2) double damages
HELD: The question of whether a plaintiff can recover punitive damages from the estate of a deceased tortfeaser is an issue of first impression. The Kansas statutes are silent on this issue. But the statutes do provide that an estate can stand in the shoes of a deceased tortfeaser, especially because an estate exists to pay the financial obligations of the deceased. And a threat of punitive damages may serve to discourage wrongdoing by trustees. For these reasons, a trust may seek punitive damages from the estate of a deceased trustee. Since that issue was not put to a jury in this case, the case must be remanded. This rationale also allows for a plaintiff to seek statutory double damages against a trustee's estate because those damages are penal in nature and serve the same purpose as punitive damages.
STATUTE: K.S.A. 58a-1002, -1002(a), -1002(a)(3), -1002(c), 60-1801, -3702, -3702(a), -3702(c), -3702(d), -3703
STATUTE OF FRAUDS
DEWITTE INSURANCE AGENCY V. FINANCIAL ASSOCIATES MIDWEST
JOHNSON DISTRICT COURT—CASE REMANDED
COURT OF APPEALS — REVERSED
NO. 115,126—SEPTEMBER 21, 2018
FACTS: Three individuals worked for Financial Associates as area managers. These individuals trained new insurance agents and provided administrative support. As part of their compensation, the area managers received one percent of the premium paid on all policies from Blue Cross/Blue Shield of Kansas City. This compensation was due to them not only during their employment but after their employment ended, until the policies they had signed were no longer renewed. The payments were made for more than 20 years. After Financial Associates sold its agency to Blue Cross, Blue Cross stopped paying the area managers this one percent premium portion. After the area managers asked for the payment to be resumed and Blue Cross refused, the area managers filed suit claiming breach of contract. The district court decided in favor of Financial Associates, concluding that the area managers' contracts did not govern the one percent premium payment and that any oral agreement to make that payment was unenforceable under the statute of frauds. The Court of Appeals affirmed, and the area managers' petition for review was granted on the statute of frauds issue.
ISSUE: (1) Statute of frauds full-performance exception
HELD: The plain language of K.S.A. 33-106 does not include any exceptions to the statute of frauds. But the full-performance exception to the statute of frauds was developed in common law and recognized in Kansas shortly after statehood. The legislature's failure to change the statute shows that the legislature has acquiesced to the full-performance exception. In Kansas, the full-performance exception requires the full performance of only one party to an agreement. Because the area managers performed their part of the contract for over 20 years, the full-performance exception applies, and the alleged oral agreement is removed from the statute of frauds.
STATUTE: K.S.A. 33-106
Kansas Court of Appeals
PEARSON V. DEPARTMENT OF REVENUE
WYANDOTTE DISTRICT COURT—REVERSED AND DISMISSED
NO. 118,696—SEPTEMBER 21, 2018
FACTS: Pearson was arrested and his breath test showed alcohol levels above the legal limit. After being served with a suspension notice, Pearson timely requested an administrative hearing with the Department of Revenue. Pearson appeared for the scheduled hearing but the arresting officer did not, and the hearing officer dismissed the suspension order. A few days later, the hearing officer learned that the officer had attempted to notify officials that he was hospitalized and would not be able to attend the hearing. After receiving that information, the hearing officer withdrew the dismissal order and set a new hearing date to consider Pearson's suspension. Pearson objected, but the hearing was held and a new hearing officer affirmed the suspension of Pearson's driver's license. After Pearson filed a petition for judicial review, the district court affirmed, finding that the hearing officer was a party to the proceedings and could withdraw the dismissal. Pearson appealed.
ISSUES: (1) Jurisdiction; (2) ability to withdraw an order
HELD: The order withdrawing the dismissal and setting the matter for a second hearing was not a final agency action. As such, Pearson could not have filed a petition for judicial review of that order. Pearson was allowed to appeal only at the conclusion of the second proceeding, where the new hearing officer affirmed the suspension of his driving privileges. There is no express or implicit statutory authority to allow a hearing officer to reconsider, grant a rehearing, or set aside an administrative suspension order after the order's effective date. The district court erred when it found that the hearing officer was a party to the action, giving her the authority to withdraw the order of dismissal. In the absence of a request for reconsideration, the hearing officer could not withdraw the order of dismissal and reinstate the proceedings against Pearson.
STATUTES: K.S.A. 2017 Supp. 8-259(a), -1002, -1002(a), -1002(f), -1020, -1020(d)(1), -1020(k), -1020(m), -1020(n), -1020(o), -1020(p), -1020(q), 77-621(a)(1); and K.S.A. 77-607(a), -607(b)(1), -607(b)(2)
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Monday, September 10, 2018
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Kansas Supreme Court
ORDER OF REINSTATEMENT
IN THE MATTER OF LYLE LOUIS ODO
NO. 114,863 – SEPTEMBER 5, 2018
FACTS: Odo's license to practice law in Kansas was suspended for one year in July 2016. In July 2017, Odo filed a petition for reinstatement. After a hearing, the Kansas Board for Discipline of Attorneys recommended that the petition for reinstatement be granted. After careful consideration, the court accepted the panel's findings and grants the petition for reinstatement.
CENTRAL KANSAS MEDICAL CENTER V. HATESOHL
BARTON DISTRICT COURT—AFFIRMED
COURT OF APPEALS—REVERSED
NO. 113,675—SEPTEMBER 7, 2018
FACTS: Central Kansas Medical Center is a nonprofit corporation which is licensed to operate an ambulatory surgical center. CKMC contracted with Dr. Hatesohl to provide family medicine services. The contract contained a postemployment clause which prevented Dr. Hatesohl from practicing medicine within a 50-mile radius of CKMC. Although he was dissatisfied with the way that the family practice merged with an urgent care facility, Dr. Hatesohl worked the full term of his contract. When he left, CKMC let him know that it would enforce all post-employment covenants. Dr. Hatesohl responded that he believed his employment contract was void because it violated the prohibition against the corporate practice of medicine doctrine. The day after his contract expired, Dr. Hatesohl entered a new contract with Great Bend Regional Hospital to practice family medicine. CKMC sought injunctive relief and damages alleging breach of contract. Dr. Hatesohl countered with a claim that CKMC's ambulatory surgical center license did not cover family medicine. The district court agreed and granted Dr. Hatesohl's motion for summary judgment, finding his employment contract was illegal. The court of appeals reversed and the petition for review was granted.
ISSUE: (1) Validity of employment contract
HELD: The practice of medicine is limited to licensed persons, not corporations. But a corporation which is licensed by the State may employ a physician to provide medical services, with the caveat that the physician may not practice medicine that the corporation is not licensed to provide. Since CKMC only held an ambulatory surgical center license, its power to provide family medicine services through Dr. Hatesohl had to flow from that license. It did not. An ambulatory surgical center license is not broad enough to encompass a family practice. Because Dr. Hatesohl was hired to practice medicine that CKMC was not licensed to perform, his employment contract violated the corporate practice of medicine doctrine and was void.
CONCURRENCE (Stegall, J.): The corporate practice of medicine doctrine should be abandoned because it is a judicial intrusion in to the legislative arena and was created to aid special interest groups. The decision of the majority is correct because the court was not asked to overturn the doctrine and stare decisis compels this decision.
STATUTES: K.S.A. 2017 Supp. 17-2707(b)(9), 40-3401(f), 60-256(c)(2), 65-2803(a); K.S.A. 17-2709(a), 48-1603(o), -1607(a), 65-425(a), -425(b), -425(e), -425(f), -425(h), -427, -431(a), -431(c)
MCCULLOUGH V. WILSON
WYANDOTTE DISTRICT COURT — AFFIRMED
COURT OF APPEALS — AFFIRMED
NO. 115,067—SEPTEMBER 7, 2018
FACTS: Wilson was driving excessively fast when he collided with the back of car carrying McCullough and his passenger, Risley. McCullough and Risley filed a lawsuit against Wilson, seeking monetary damages for lost wages, pain and suffering, and medical expenses. Risley's medical expenses were paid by the PIP coverage provided by his AAA insurance. But AAA never requested reimbursement from Wilson's insurance company. After a jury decided in Risley's favor, Wilson sought to overturn part of the verdict on grounds that Risley's cause of action passed to AAA and that only AAA could recover damages for Risley's medical expenses. The district court denied the motion and the Court of Appeals affirmed. Wilson's petition for review was granted.
ISSUES: (1) Assignment of subrogation rights
HELD: The doctrine of stare decisis suggests that the district court's decision should be affirmed. Especially in cases involving contracts, reliance on prior precedent is important. Because there is no reason to depart from prior holdings, Risley is entitled to the entire verdict awarded by the jury, including the portion covering medical expenses.
STATUTE: K.S.A. 40-3103, -3113a, -3113a(c)
State v. Clapp
reno district court—reversed and remanded
court of appeals—reversed
No. 112,842—September 7, 2018
FACTS: Clapp was sentenced to a 118-month prison term and granted a downward dispositional departure to 36 months probation with a 60-day jail sanction to be suspended when inpatient drug treatment had been arranged. State filed its first motion to revoke in January 2014. District court revoked probation and imposed a180-day prison sanction. State filed a second motion to revoke in August 2014. District court revoked probation and imposed the underlying sentence, specifically stating he did not feel Clapp valued Community Corrections as a way to help change how Clapp thought and lived his life. District court agreed that Clapp had not committed a new crime, had not absconded, had a job, and was still in treatment, but commented on the convictions leading to Clapp’s probation, his criminal history, and his dishonesty with his intensive supervision officer. Clapp appealed, claiming in part the district court failed to make the statutory findings required by K.S.A. 2014 Supp. 22-3716(c)(9) to bypass the statutory intermediate sanctions for parole violators. Court of appeals affirmed in an unpublished opinion, finding in part that K.S.A. 2014 Supp. 22-3716 does not require district court to make statutory findings to bypass intermediate sanctions when a violator has already served a 180-day intermediate sanction, and that, even if required in this case, the district court implicitly satisfied the particularity requirement to revoke based upon public safety. Clapp’s petition for review was granted.
ISSUE: Probation violation sanctions under 2013 and 2014 Versions of K.S.A. 22-3716
HELD: District court’s revocation of Clapp’s probation under subsection (c)(1)(E) for a second probation violation did not conform to the graduated sanctioning scheme in the 2013 and 2014 versions of K.S.A. 22-3716. For a second violation, the district court could have utilized the prison sanction of 120- or 180-days under subsections (c)(1)(C)-(D). Imposition of the underlying sentence on a probation violator was not authorized under subsection (c)(1)(E) because no previous jail sanction pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A)-(B) or K.S.A. 2014 Supp. 22-3716(c)(1)(B) had been imposed, notwithstanding the 60-day jail term in the original sentence or the district court’s error in imposing a 180-day sanction for Clapp’s first violation. Nor did the district court set forth the particularized reasons required by K.S.A. Supp. 22-3716(c)(9) to bypass the graduated intermediate sanctions. Instead, district court’s remarks were akin to historical reasoning for revoking probation prior to the 2013 amendment to K.S.A. 22-3716. Reversed and remanded for a new dispositional hearing to comply with K.S.A. 2014 Supp. 22-3716.
STATUTES: K.S.A. 2014 Supp. 22-3716, -3716(b), -3716(b)(4)(A)-(B), -3716(c)(1)(A)-(E), -3716(c)(8), -3716(c)(9), -3716(c)(12); K.S.A. 2013 Supp. 22-3716(c)(1)(D)-(E), -3716(c)(8), -3716(c)(9); and K.S.A. 22-3504(1)