Kansas Supreme Court
criminal law—criminal procedure—prosecutors—statutes
state v. king
wyandotte district court—affirmed
No. 116,146—june 1, 2018
FACTS: King and a codefendant were jointly tried on charges arising from a string of violent robberies. Jury convicted King of attempted capital murder, aggravated robbery, aggravated battery, conspiracy to commit aggravated robbery, and criminal possession of a firearm. Two weeks later King filed motion for a new and severed trial, citing statements by codefendant’s attorney during closing argument. District court denied the motion. On appeal King claimed: (1) insufficient evidence that he was one of the robbers, and no evidence of a formal agreement to support the conspiracy conviction; (2) prosecutor improperly interjected his personal beliefs during closing argument; (3) district court erred by denying King’s motion for a new trial; and (4) cumulative error denied him a fair trial.
ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial Error, (3) motion for New and severed trial, (4) cumulative error
HELD: Sufficient evidence supported the convictions. Under facts in case, a rational fact-finder could have found beyond a reasonable doubt that King was one of the robbers, and there was strong circumstantial evidence of an agreement to commit a string of robberies.
Prosecutor’s statements in closing argument are examined in detail. Prosecutor’s use of “I submit” was not error. Two of prosecutor’s “I think” statements” impermissibly conveyed the prosecutor’s opinion but were not error in this cases which occurred before Kansas Supreme Court cases put prosecutor’s on notice that such statements were improper. Three uses of “we know” were error, even if the inferences being drawn were reasonable, but these errors were harmless beyond a reasonable doubt.
King failed to request a severance before or during trial, did not object to the codefendant’s closing argument statements, and first asked for severance in his motion for a new trial. By failing to comply with K.S.A. 22-3204, King waived his ability to seek severance.
Aggregate effect of the three harmless prosecutorial errors found in this case were harmless beyond a reasonable doubt.
STATUTES: K.S.A. 2017 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 21-5302(a); K.S.A. 22-3202(3), -3204
criminal law—jury instructions prosecutors
state v. nesbitt
sedgwick district court—affirmed
No. 116,550—june 1, 2018
FACTS: Nesbitt convicted of felony murder, rape, and aggravated burglary. The crimes arose from a violent attack on a 100-year-old victim in her home, and the victim’s subsequent death. On appeal Nesbitt claimed: (1) insufficient evidence supported his felony murder conviction because the victim’s death 21 days later was not within the res gestae of the underlying felony of rape, and no direct causal connection between the rape and the victim’s death; (2) insufficient evidence supported his aggravated burglary conviction because no evidence that he entered the home to commit rape; (3) prosecutor’s reference in closing argument to victim as a family “treasure” was improper attempt to inflame the passions of the jury; (4) trial judge erred by refusing to give a defense-proposed instruction on a race-switching exercise; and (5) cumulative error denied him a fair trial.
ISSUES: (1) Sufficiency of the evidence—felony murder, (2) sufficiency of the evidence - aggravated burglary, (3) prosecutorial error, (4) race-switching instruction, (5) cumulative error
HELD: No legal merit to Nesbitt’s res gestae argument. Sufficient evidence supported Nesbitt’s conviction on felony murder, including the foreseeability of a rape victim’s death 21 days after the attack, when injuries the victim suffered caused pain that immobilized her, giving rise to the development of fatal blood clots.
Sufficient evidence supported jury’s verdict that rape, not theft, was the attacker’s goal on entering the home. Victim’s house was tidy and orderly but for the mutilated back door through which the attacker entered and the disorganized bedroom where the rape occurred. Nothing to indicate someone entered the house to commit theft—nothing was missing or moved, including valuable items in plain view.
Prosecutor’s challenged remarks were improper, with no purpose other than inflaming passions of jurors, but under facts in case no reversible error.
No Kansas case found in which the proposed race-switching instruction has been given. Federal and state court cases are reviewed, with majority rejecting the instruction. Here, the proposed instruction was not legally appropriate under Kansas law, thus district judge did not err in refusing to give it.
The single error found in this case does not support a cumulative error claim.
STATUTES: K.S.A. 2014 Supp. 21-5402(a)2), -5402(c)(1)(E); K.S.A. 2013 Supp. 21-5807(b)(1)
state v. parks
reno district court—affirmed
No. 116,172—june 1, 2018
FACTS: Parks convicted in 1997 of the 1978 premeditated first-degree murder of his wife. State v. Parks, 265 Kan. 644 (1998). Over 16 years later, Parks filed pro se “Motion to Set Aside a Void Judgment,” claiming his no contest plea was not knowing and intelligent. Appointed counsel argued the motion should be treated as one to withdraw Parks’ plea. District court agreed and denied the motion, finding it untimely with no showing of excusable neglect for the delay. Parks appealed, arguing for first time that district court should have construed the pro se motion as one under K.S.A. 60-1507 that would have been timely under the manifest injustice exception.
ISSUE: Motion to withdraw plea
HELD: Under facts in the case, invited error doctrine applies where Parks repeatedly invited district court to construe a pro se motion as a motion to withdraw plea. Argument that the district court should have construed and treated Parks’ motion as a K.S.A. 60-1507 motion is rejected. District court correctly held the motion was untimely filed. Parks failed to meet his burden of demonstrating excusable neglect to allow the out-of-time motion to withdraw his plea.
STATUTES: K.S.A. 2017 Supp. 22-3210, -3210(e)(1), -3210(e)(2), -3601; K.S.A. 22-3210, 60-1507; K.S.A. 21-3401, -4501 (Weeks, 1974)
Kansas Court of Appeals
DUE PROCESS—WORKERS COMPENSATION
PARDO V. UNITED PARCEL SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 116,842—JUNE 1, 2018
FACTS: Pardo is a long-term employee of UPS, and he continues to work there to this day. Pardo injured his shoulder in 2013 during the course of his employment. The injury was surgically repaired and the parties agreed to a 15% permanent partial impairment rating. Pardo injured his left shoulder again in 2015 while at work. Surgery revealed a new injury. It was treated and Pardo returned to work, but he continued to have pain and a limited range of motion. All of the physicians who examined Pardo agreed that he had residual issues with the shoulder that warranted both future medical treatment and an impairment rating. An amendment to K.S.A. 2014 Supp. 44-510d(b)(23) required the physicians to consult the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, which allows for only one lifetime impairment rating with no exception made for a physician's skill, experience, expertise, training, or judgment. Based on that decree, Pardo was assigned a zero percent impairment rating. The ALJ denied Pardo's request for compensation. That finding was affirmed by the Board, and Pardo appealed.
ISSUE: (1) Constitutionality of K.S.A. 2014 Supp. 44-210d(b)(23)
HELD: UPS provided no evidence to prove that the change from the 4th edition of the AMA Guides to the 6th edition was reasonably necessary to promote the general welfare of the people of Kansas. But the State did prove that the amendment was made because the 6th edition is more medically sound than the 4th edition. Under the Workers Compensation Act, Pardo surrendered his right to seek a common-law award from his employer. When the 6th edition of the Guides is used, Pardo gets nothing in return for that surrender. This leaves Pardo with no remedy and renders K.S.A. 2014 Supp. 44-510d(b)(23) unconstitutional as applied to him. The remedy is to sever the portion of the statute that is unconstitutional as applied to Pardo. The case is remanded for further proceedings.
STATUTES: Kansas Constitution Bill of Rights, § 1, §18, Article 2, § 1, Article 3, § 1; K.S.A. 2014 Supp. 44-501(e), -501b(d), -510d(b)(23); K.S.A. 44-574(b)
ATTORNEY FEES—GRANDPARENT VISITATION
IN RE PATERNITY OF M.V.
RENO DISTRICT COURT—REVERSED AND REMANDED
NO. 118,189—JUNE 1, 2018
FACTS: Father's paternity was established in 2009. Over the years, mother and father had many disagreements about custody, parenting time, and child support. In 2017, the paternal grandmother filed a motion requesting grandparent visitation of one weekend per month. Mother objected and asked for attorney fees, claiming that no provision in the Kansas Parentage Act allows for grandparent visitation. After a hearing, the district court concluded that M.V. had a substantial relationship with grandmother and that visitation was in her best interests. The district court granted visitation using grandmother's proposed schedule and denied mother's request for attorney fees. Mother asked the district court to reconsider and proposed a once-per-month visit of five hours, versus an entire weekend. Mother based this request on the fact that grandmother had an unknown man living with her and because grandmother took M.V. to visit father in jail, even though father was facing child sex abuse charges and the visits violated a court order. The district court denied reconsideration and mother appealed.
ISSUES: (1) Due process violation; (2) attorney fees
HELD: Grandmother does have the right to seek visitation in the context of a paternity action. And grandmother satisfied her burden to prove that there was a substantial relationship and that visitation was in M.V.'s best interests. But in any grandparent visitation action, the district court must presume that a fit parent is acting in the child's best interests and must give special weight to the parent's proposed visitation schedule. There is no indication in this case that the district court ever properly evaluated mother's proposed schedule. This case must be remanded in order to allow the district court to make all necessary findings about mother's proposed schedule, which cannot be rejected unless it is found to be unreasonable. On remand, the district court must also follow the statute when evaluating mother's request for attorney fees.
STATUTE: K.S.A. 2017 Supp. 23-3301, -3301(b), -3304