Print Page | Contact Us | Sign In | Register
Appellate Court Digests
Blog Home All Blogs
@@WEBSITE_ID@@

 

Search all posts for:   

 

Top tags: criminal procedure  statutes  Constitutional Law  Attorney Discipline  evidence  Sedgwick District Court  Criminal Law  Sedgwick District  motions  Appeals  jury instructions  Johnson District Court  sentencing  Shawnee District Court  Wyandotte District  jurisdiction  Shawnee District  juries  Sentences  Fourth Amendment  habeas corpus  Johnson District  Reno District  Saline District  Sedgwick  8807  appellate procedure  Reno District Court  search and seizure  contracts 

August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

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

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

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

criminal

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

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 In unpublished opinion the Court of Appeals affirmed Braun’s conviction.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

ISSUE: Stipulated facts in support of conviction on alternative charge

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: Change of law—constitutional error

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

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

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

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

 

Kansas Court of Appeals

criminal

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

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

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

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

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

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

Share |
PermalinkComments (0)
 

August 30, 2019 Digest

Posted By Administration, Tuesday, September 3, 2019

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

ORDER OF DISBARMENT
IN RE LARRY DEAN TOOMEY
NO. 11,959—AUGUST 29, 2019

FACTS: In a letter dated August 13, 2019, Larry Dean Toomey voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a disciplinary complaint was pending. Toomey was convicted of two counts of felony theft; the victim was his client.

HELD: The Court accepted the surrender, and Toomey is disbarred.

Tags:  Attorney Discipline  Disbarment 

Share |
PermalinkComments (0)
 

April 9 and April 12, 2019 Digests

Posted By Administration, Monday, April 15, 2019

Kansas Supreme Court

 

Attorney Discipline

ORDER OF DISBARMENT
IN RE PATRICK GEORGE COPLEY
NO. 20,699—APRIL 9, 2019

FACTS: In a letter dated April 1, 2019, Patrick George Copley surrendered his license to practice law in Kansas. At the time of surrender, two disciplinary complaints were pending with the Disciplinary Administrator.

HELD: The Court accepts the surrender of Copley's license and orders that he be disbarred.

 

Civil

WORKERS COMPENSATION
ESTATE OF GRABER V. DILLON COMPANIES
WORKERS COMPENSATION BOARD—COURT OF APPEALS IS AFFIRMED,
BOARD IS REVERSED, CASE REMANDED
NO. 113,412 – APRIL 12, 2019

FACTS: Graber was injured after he fell down some stairs while at work. Graber did not remember the accident, and there were no witnesses or any evidence to suggest how the accident happened. Graber applied for workers compensation benefits. An ALJ awarded him benefits, finding that the injury arose in and out of the course of his employment. Dillon appealed, claiming that because the cause of the accident was unknown, Graber's injuries arose from an idiopathic cause and were not compensable. The Board agreed with Dillon, holding that after 2011 amendments to the workers compensation statutes, idiopathic falls are not compensable. The Court of Appeals reversed, holding that "idiopathic" means something personal or innate to the claimant. The Supreme Court granted Dillon's petition for review.

ISSUES: (1) First impression question of the meaning of the term "idiopathic causes"

HELD: The legislative history does not address the "idiopathic causes" exclusion. "Idiopathic" means more than "spontaneous" or "unknown." Rather, it is connected with medical conditions and is not a synonym for all unknown causes. For that reason, the idiopathic exclusion is narrow. It applies only if there is proof that an injury or accident arose directly or indirectly from a medical condition or medical event of unknown origin which is peculiar to the claimant. The case must be remanded for further factfinding by the Board.

STATUTE: K.S.A. 2018 Supp. 44-501b(b), -508(f), -508(f)(3)(A)(iii), -508(f)(3)(A)(iv), 77-621(a), -621(c), -621(d)

 

Kansas Court of Appeals

 

Civil

INSURANCE—WRITTEN INSTRUMENTS
SHORT V. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC.
SALINE DISTRICT COURT—AFFIRMED
NO. 118,688—APRIL 12, 2019

FACTS: Short was involved in an accident which required the amputation of both legs—one below the knee and one above the knee. Short requested that Blue Cross and Blue Shield of Kansas, Inc. provide coverage for multiple prosthetics. One of the requested prosthetics was an Ottobock X3 Microprocessor leg and knee. Blue Cross denied coverage, citing the insurance contract which excluded from coverage "deluxe or electrically operated" prosthetics. Blue Cross acknowledged that a prosthetic leg was medically necessary, and it offered to pay the price of a standard knee. Short believed that Blue Cross should pay for the Ottobock X3, and he sued for breach of contract. During discovery Short requested documents beyond the insurance contract in an attempt to delve in to the policy behind Blue Cross' denial. Blue Cross refused to provide them, on grounds that the case was a straightforward contract dispute. The district court agreed and refused to compel production of the documents requested by Short. The district court granted Blue Cross' motion for summary judgment, finding that the Ottobock X3 was clearly excluded from coverage by the plain language of Short's insurance policy. Short appealed.

ISSUES: (1) Whether insurance policy is ambiguous; (2) listings of exclusions; (3) summary judgment review; (4) scope of discovery

HELD: There is no dispute that a prosthetic knee is medically necessary for Short. The insurance policy provides enough detail to support the district court's ruling that the policy is not ambiguous. The policy covers a nonelectric device that does what is absolutely necessary to treat the insured's condition. If the insured wants a device that does more, Blue Cross will pay for a standard device and the insured can pay the difference. Because the policy is unambiguous, there is no need to apply doctrines of construction. This insurance policy does not contravene public policy. It is undisputed that the Ottobock X3 is an electronically operated device, which is excluded by the plain language of Short's insurance policy. This case centers on application of a limitations clause, which involves questions of fact. For this reason, Short should have been given access to the documents he requested in discovery. The district court abused its discretion by failing to compel discovery. But the error was harmless.

DISSENT: (Atcheson, J.) There is some ambiguity in the insurance contract and there remain questions of fact. For that reason, summary judgment was inappropriate. This case should be remanded for further proceedings.

STATUTES: No statutes cited.

 

Criminal

EVIDENCE—SUPPRESSION—WELFARE CHECK
STATE V. MANWARREN
RENO DISTRICT COURT—AFFIRMED
NO. 119,520—APRIL 12, 2019

FACTS: After receiving a tip, officers found Manwarren lying in a ditch. When the officers arrived on the scene Manwarren rose to greet them. The officers began a welfare check and noted there was no indication of criminal activity, and Manwarren did not appear to be injured or intoxicated. Officers asked for and received Manwarren's photo ID. Instead of returning the card to Manwarren, officers ran a warrant check which returned a warrant for failure-to-appear. After confirming the warrant, Manwarren was arrested. After he was handcuffed, Manwarren answered officers' questions by admitting that he had drugs and scales in his backpack. Manwarren was charged with various crimes relating to this drug possession. Prior to trial, he filed a motion to suppress in which he claimed that the police impermissibly converted a welfare check to an investigatory detention without having reasonable suspicion of criminal activity. The district court agreed, finding that running a warrant check was beyond the scope of a welfare check where there was no reasonable suspicion of criminal activity. The State appealed.

ISSUES: (1) Voluntariness of the encounter; (2) application of the attenuation doctrine

HELD: The encounter between police and Manwarren began as a welfare check. But once the officer obtained and then kept Manwarren's identification card, the encounter turned into a seizure. In the absence of any evidence of criminal activity, the warrant check went beyond the scope of a welfare check and evolved into an illegal detention.  Very little time elapsed between the illegal seizure of Manwarren and the discovery of the drugs in his backpack. Police officers were polite and courteous and did not appear to know they were violating Manwarren's rights. But running a warrant check as part of a welfare check is not a good-faith mistake. It is misconduct and should be punished by excluding the evidence discovered.

STATUTES: No statutes cited.

 

Tags:  Disbarment  Reno District  Saline District 

Share |
PermalinkComments (0)
 

October 3 and October 5, 2018 Digests

Posted By Administration, Tuesday, October 9, 2018

Kansas Supreme Court

Attorney Discipline

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

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

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

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

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

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

Civil

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

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

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

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

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

criminal

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

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

ISSUE: Appellate jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cumulative error claim fails.

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

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

Share |
PermalinkComments (0)
 

January 19, 2018 Digests

Posted By Administration, Tuesday, January 23, 2018
Updated: Monday, January 22, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF THEODORE R. HOEFLE
No. 22,228—JANUARY 16, 2018

FACTS: In a letter signed December 29, 2017, Theodore R. Hoefle voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary complaint was pending against Hoefle. The complaint alleged that Hoefle violated Kansas Rule of Professional Conduct 8.4 (misconduct) by failing to correct a false insurance claim and failing to correct false information in a police report.

HELD: The court found that the surrender should be accepted. Hoefle is disbarred.

civil

appeals—appellate procedure—attorney and client—habeas corpus—jurisdiction—postconviction remedies
mundy v. state
lyon district court—affirmed; court of appeals—affirmed
No. 112,131—january 19, 2018

FACTS: Mundy was found guilty of making a false claim to the Medicaid program and obstructing a Medicaid fraud investigation. Sentence imposed included a suspended prison term, probation, and payment of restitution and costs. While on probation Mundy filed a pro se 60-1507 motion, alleging, in part, ineffective assistance of trial attorney. District court appointed counsel. After reviewing the record, the district court summarily denied the 60-1507 motion, finding Mundy failed to show that trial counsel’s representation was not objectively reasonable, and that Mundy failed to plead sufficient facts for an evidentiary hearing. 60-1507 counsel filed notice of appeal. Appellate counsel appointed. Mundy argued, in part, that her release from probation did not deprive courts of jurisdiction, that 60-1507 counsel was ineffective by filing only a bare notice of appeal, and that district court’s summary denial of the 60-1507 motion denied her due process by not following procedural options in Lujan v. State, 270 Kan. 163 (2000). In an unpublished opinion, the Court of Appeals agreed that Mundy’s release from probation did not deprive courts of jurisdiction, found no jurisdiction to consider claim raised for first time on appeal that 60-1507 counsel was ineffective because issue was not included in the notice of appeal, and affirmed the district court’s summary denial of the 60-1507 motion. Mundy’s petition for review was granted.

ISSUES: (1) Jurisdiction, (2) notice of appeal, (3) ineffective assistance of 60-1507 counsel, (4) adjudication of a 60-1507 motion

HELD: Issue of first impression for Kansas Supreme Court. A Kansas court obtains jurisdiction over a 60-1507 motion if it is filed while a movant is in custody, and jurisdiction is not lost if the movant’s custody ends before judgment on the motion becomes final. Adopting the standard applied in habeas context, Mundy’s release from probation did not render her appeal moot because she still faced obligation to pay restitution and costs.

Court of Appeals erred in concluding it lacked jurisdiction to determine Mundy’s ineffective assistance of 60-1507 counsel claim. Panel’s approach effectively took away the availability of a proceeding under State v. Van Cleave, 239 Kan. 117 (1986). A notice of appeal stating the appeal is being taken from trial court’s decisions is sufficiently broad to give an appellate court jurisdiction to hear a claim that counsel appointed to handle 60-1507 proceeding was ineffective, even when the claim is raised for first time on appeal.

The claim of ineffective assistance of 60-1507 counsel is not reached or decided. Mundy was entitled to effective assistance of 60-1507 appointed counsel, but the record is insufficient to resolve that issue. Mundy never requested a Van Cleave remand and Supreme Court declines to sua sponte order a remand in this case.

K.S.A 2016 Supp. 60-1507 and Kansas Supreme Court Rule 183 are interpreted. Nothing in Lujan prevents a district court from concluding without a hearing—even after counsel has been appointed - that the motions, files, and records of a case conclusively show that the movant is entitled to no relief. In this case, Mundy’s 60-1507 motion did not merit an evidentiary hearing and the district court did not err in summarily dismissing the motion.  

STATUTES: K.S.A. 2016 Supp. 60-1507, -1507(a), -1507(b), -2103, -2103(b); and K.S.A. 21-3846(a)(1), -3849, 22-4506(b), 60-2101(b)

Tags:  appellate procedure  Attorney Discipline  disbarment  habeas corpus  Lyon  Lyon District  postconviction remedies 

Share |
PermalinkComments (0)