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September 11, 2020

Posted By Administration, Monday, September 14, 2020

Kansas Supreme Court

 

CIVIL

 

HABEAS CORPUS—INEFFECTIVE ASSISTANCE OF COUNSEL
KHALIL-ALSALAAMI V. STATE
RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,

DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,184—SEPTEMBER 11, 2020

 

FACTS: Khalil-Alsalaami was convicted of two counts of aggravated criminal sodomy. At trial, a primary issue was the voluntariness of custodial statements made by Khalil-Alsalaami to law enforcement. Issues included the accuracy of the Miranda warning, the fact that Khalil-Alsalaami's primary language is Arabic, and a question about whether Khalil-Alsalaami knew he was confessing to an actual crime. Trial counsel stipulated that Khalil-Alsalaami's partial confession was knowing and voluntary and did not object when that stipulation was introduced at trial. After an unsuccessful direct appeal, Khalil-Alsalaami filed a K.S.A. 60-1507 motion challenging the effectiveness of his trial counsel. The district court denied the motion, finding that the stipulation and the failure to object to introduction of the agreement was a strategic decision. Khalil-Alsalaami appealed, and the Court of Appeals unanimously reversed and remanded, finding that trial counsel was constitutionally ineffective. The ruling gave particular mention to the failure of law enforcement to provide an interpreter for Khalil-Alsalaami. The State's petition for review was granted.

 

ISSUES: (1) Deficient performance of trial counsel; (2) prejudice resulting from deficient performance

 

HELD: The Court does not believe it is necessary to decide whether the lack of an interpreter renders Khalil-Alsalaami's confession involuntary. Instead, given the plain testimony from trial counsel, it is easy to see that counsel's performance was ineffective. The admissibility of Khalil-Alsalaami's confession was the paramount issue in the case, and counsel's failure to even attempt to keep it from the jury cannot be attributed to trial strategy. It is easy to see that prejudice occurred. This case must be returned to district court for a new trial.

 

CONCURRENCE: (Beier, J., joined by McAnany, S.J.) The majority reached the right decision. But it should also have found that Khalil-Alsalaami's confession was per se involuntary due to the lack of an interpreter, which was required by the plain language of K.S.A. 75-4351.

 

DISSENT: (Biles, J., joined by Stegall, J.) Counsel's motion to suppress would not have succeeded at trial, so a failure to file it could not have amounted to prejudicial ineffective assistance of counsel.

 

STATUTES: K.S.A. 60-1507, 75-4351

 

MORTGAGES
FAIRFAX PORTFOLIO LLC V. CAROJOTO LLC
WYANDOTTE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED

DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 118,712—SEPTEMBER 11, 2020

 

FACTS: Fairfax owned commercial real estate which was secured by a promissory note and mortgage held by Carojoto. Fairfax was in default on the note at the time Carojoto acquired the debt. Without warning, Carojoto took possession of the property and filed a mortgage foreclosure action. Carojoto eventually purchased the property at a sheriff's sale. Fairfax filed this action, claiming Carojoto improperly took possession of the property prior to the foreclosure action, causing damages. Carojoto sought dismissal, claiming it was allowed to take possession of the property under the terms of the mortgage. The district court agreed. The Court of Appeals reversed, holding that Carojoto was not allowed to rely on provisions of executory agreements. A petition for review was granted.

 

ISSUE: (1) Ability to take property

 

HELD: It has long been established that in the absence of stipulations to the contrary, a mortgagor of real property may retain possession of that property. The mortgage instrument alone cannot provide a sufficient stipulation for possession. Even if Carojoto included such language in its mortgage instrument, it cannot be enforced.

 

CONCURRENCE: (Stegall, J.) Justice Stegall concurs in the judgment solely on the grounds of stare decisis, which should be followed especially closely in instances where there is economic reliance.

 

DISSENT: (Biles, J.) The mortgage provision allowing possession is a "stipulation to the contrary" which overrides the general rule that a mortgagor is allowed to hold property.

 

STATUTES: K.S.A. 2019 Supp. 60-212(d); K.S.A. 58-2301

 

Criminal

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS—SENTENCING—STATUTES

STATE V. COLEMAN

WYANDOTTE DISTRICT COURT—AFFIRMED

NO. 120,246—SEPTEMBER 11, 2020

 

FACTS: Coleman’s 1999 conviction for first-degree premeditated murder and aggravated assault convictions were affirmed but case was remanded for resentencing because district court considered two aggravating factors not found in the statute to impose a hard-40 life prison term. 271 Kan. 733 (2001). Coleman again sentenced in 2001 to a hard-40 life term which was then affirmed in 2003 (unpublished). Coleman filed 2018 motion to modify his sentence to require no mandatory prison term, citing Alleyne v. United States, 570 U.S. 99 (2013), and State v. Soto, 299 Kan. 102 (2014). District judge summarily denied the motion, noting in part Coleman’s earlier K.S.A. 60-1507 motion. Coleman appealed.

 

ISSUE: (1) Motion to modify sentence

 

HELD: Appeal involves constitutional issues and questions of statutory interpretation.  Developing caselaw regarding sentence enhancement based on judicial fact finding is summarized. Coleman’s motion is not proper under K.S.A. 22-3504 (to correct an illegal sentence) or under K.S.A. 60-1507 (a collateral attack on an unconstitutional sentence), and Alleyene and Soto do not operate retroactively to provide a remedy in this case. Coleman cites K.S.A. 2019 Supp. 21-6628(c), but under analysis in State v. Thurber, 308 Kan. 140 (2018), that statute does not apply. District court judgment is affirmed.  

 

STATUTES: K.S.A. 2019 Supp. 21-6628(b), -6628(c), 60-1507(f)(1), -1507(f)(2); K.S.A. 2016 Supp. 21-6622(h); K.S.A. 21-4635, -4629, 60-1507,  22-3504

 

CONSTITUTIONAL LAW—CRIMINAL LAW—JURY INSTRUCTIONS

STATE V. KEYES

GRANT DISTRICT COURT—REVERSED AND REMANDED

NO. 118,894—SEPTEMBER 11, 2020

 

FACTS: Jury convicted Keyes of first-degree premeditated murder for fatally shooting victim in the chest and head. District court denied Keyes’ request to instruct jury on self-defense and involuntary manslaughter finding the evidence failed to support either instruction. Keyes appealed, claiming in part reversible error by the district court’s refusal to give the requested instructions. State argued a self-defense instruction was not justified where Keyes provoked the victim by taking a gun to the victim’s trailer and threatening the victim, and any error was harmless because Keyes’ testimony was implausible.

 

ISSUE: (1) Jury instruction

 

HELD: Based on evidence introduced at trial, a self-defense instruction was both legally and factually appropriate. State’s theory ignores Keyes’ testimony, if believed, that it was necessary to kill the victim in order to defend himself. Viewing the evidence in light most favorable to Keyes, district court erred in not instructing jury on self-defense and the court is not convinced there is no reasonable probability this error affected the outcome of the trial. Keyes’ additional claims in the appeal are not reached. Reversed and remanded.

 

CONCURRENCE (Leben, J.): Joins the court’s opinion in full but also comments on the standard of review. Because Keyes’ constitutional right to present a defense is at issue, the constitutional harmless-error test should apply. No need to decide which standard should apply here because State has not shown the district court’s error was harmless under either standard. This standard-of-review question can be addressed in a future case with briefing. 

 

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5222, -5226

 

 

 

Court of Appeals

 

CIVIL

 

FORECLOSURE—REAL ESTATE
BUCKLIN NATIONAL BANK V. HAYSE RANCH
KIOWA DISTRICT COURT—REVERSED AND REMANDED
NO. 121,690—SEPTEMBER 11, 2020

 

FACTS: In 2002, L.P.P. Mortgage Ltd. obtained a default judgment of foreclosure against Helen Hayse and her son, Paul. The district court confirmed the sheriff's sale and ordered a statutory redemption period of three months. The day before the redemption period ended, Helen assigned her rights of redemption to Celia Pruitt for $100. Pruitt then filed notice of her exercise of the right of redemption and deposited the total amount of Helen's debt to redeem the property. Pruitt followed up by filing an affidavit with the Register of Deeds in which she declared herself to be the owner of the property by virtue of her acquisition and subsequent exercise of redemption rights. Helen and Paul had previously used the property to secure a series of loans from Bucklin National Bank. Helen died intestate in January 2017, and after these loans went unpaid the Bank initiated foreclosure proceedings. Pruitt intervened in the action seeking a declaratory judgment that she was the rightful owner of the property. The Bank moved for summary judgment and the district court granted it, finding that exercising an assigned right of redemption was ineffective to pass title absent a document of conveyance. After her motion for new trial was denied, Pruitt appeals.

 

ISSUES: (1) Action to quiet title; (2) whether a deed is necessary to convey title

 

HELD: A statutory right of redemption is different than the common law equitable right of redemption, the latter of which arises before the foreclosure sale. Under the statutory scheme in Kansas, an assignee of a property owner's redemption rights obtains all property rights of the owner upon exercise of those redemption rights. Pruitt obtained equitable title to the property when she exercised the redemption rights that she purchased from Helen. It is not necessary to have a deed of conveyance to prove ownership of property. Pruitt took many official steps to register her equitable title, and that was enough to secure her primary right to the property. But the case must be remanded to determine whether Pruitt has a colorable claim of adverse possession.

 

STATUTE: K.S.A. 2019 Supp. 60-2414, -2414(h), -2414(i)

 

DIVORCE—MAINTENANCE
IN RE MARRIAGE OF WELTER
MIAMI DISTRICT COURT—REVERSED AND REMANDED
NO. 121,605—SEPTEMBER 11, 2020

 

FACTS: Steven and Keira Welter divorced in 2016. The decree ordered Steven to pay monthly maintenance of $781 for 73 months. One of the conditions on maintenance is that payments would stop if Keira remarried or was cohabitating, which was defined as living with a non-relative adult for substantially consecutive periods of time in excess of 30 days, even if the relationship was not marriage-like. Steven's maintenance payments were often suspended in the years after the divorce, primarily because Keira refused to comply with certain requirements of the divorce decree. In December 2018, Steven moved to terminate maintenance on grounds that Keira was cohabitating with her boyfriend. Keira objected, claiming she lived with her boyfriend only because she could not afford to live independently due to the lack of maintenance payments. After hearing arguments, the district court denied Steven's motion to terminate and instead modified the maintenance agreement to shorten Steven's obligation by nine months – the length of time Keira was cohabitating. Steven appealed.

 

ISSUE: (1) District court's authority to modify maintenance

 

HELD: It is undisputed that Keira violated the cohabitation termination condition of the divorce decree. The automatic termination clause of the decree means that Steven's maintenance obligation automatically terminated after June 2018. It does not matter that, at the time Keira was cohabitating, Steven's maintenance obligation has been temporarily suspended by the district court. Once the terminating event of cohabitation occurred, the district court lost the authority to modify Steven's maintenance obligation and equity does not require a different result.

 

DISSENT: (Atcheson, J.) All of the decisions made by the district court were within its discretion and authority, and the majority opinion places too many restrictions on district court action.

 

STATUTE: K.S.A. 2019 Supp. 23-2711(a)(3), -2902, -2903, -2904

 

CRIMINAL

 

CRIMINAL PROCEDURE—SENTENCING—STATUTES

STATE V. PATTON

RENO DISTRICT COURT—AFFIRMED

NO. 120,434—SEPTEMBER 11, 2020

 

FACTS: State charged Patton in November 2016 with DUI. In 2018, jury convicted him on that charge and district court imposed a 12 month sentence upon finding this was Patton’s fourth or subsequent DUI conviction. On appeal Patton claimed the prosecutor erred in closing argument by misstating the evidence. He also claimed district court erred under rule outlined in State v. Wetrich, 307 Kan. 552 (2018), by using Patton’s 2003 Oklahoma and 2007 Missouri DUI convictions to enhance the sentence.

 

ISSUES: (1) Prosecutorial error; (2) classification of prior out-of-state convictions to enhance sentence

 

HELD: Given the entire context of prosecutor’s closing arguments, prosecutor’s statements that Patton had been drinking on New Year’s Day 2016, and that the standard field sobriety tests showed Patton was under the influence, were not inconsistent with evidence presented at trial.

            Patton and the State agreed the rule Weitrich controls because K.S.A. 2015 Supp. 8-1567(i) was the rule in effect at the time Patton committed the DUI offense. But under State v. Reese, 300 Kan. 650 (2014), when a court enhances a current DUI sentence under K.S.A. 8-1567(i) it must apply the sentencing rule in effect at the time of sentencing. Applying the 2018 amendment to K.S.A. 8-1567(i) and (j), district court did not err in sentencing Patton as a fourth or subsequent DUI offender.

           

STATUTES: K.S.A. 2019 Supp. 8-1567(a), 22-3504(a); K.S.A. 2018 Supp. 8-1567, -1567(i), -1567(i)(1); K.S.A. 2017 Supp. 21-6811(e)(2)(A), -6811(e)(3); K.S.A. 2015 Supp. 8-1567, -1567(a), -1567(a)(3), -1567(b)(1)(D), -1567(i), -1567(j)

 

 

 

Tags:  constitutional law  criminal law  criminal procedure  divorce  foreclosure  habeas corpus  ineffective assistance of counsel  jury instructions  Kiowa District Court  maintenance  mortgages  motions  real estate  Reno District Cou  Riley District Court  sentencing  statutes  Wyandotte District Court 

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July 24, 2020 Digests

Posted By Administration, Monday, July 27, 2020

Kansas Supreme Court

Civil

HABEAS CORPUS, RIGHT TO COUNSEL
BALBIRNIE V. STATE
FRANKLIN DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,650—JULY 24, 2020

FACTS: Balbirnie was convicted of second-degree murder, and his conviction was affirmed on direct appeal. Throughout that process, Balbirnie consistently proclaimed his innocence and blamed the murder on one of the other people present at the scene of the crime. Within one year of his conviction being affirmed, Balbirnie filed a K.S.A. 60-1507 motion in which he claimed trial counsel was ineffective for failing to investigate and then introduce at trial a recording of a 911 call at which an eyewitness named another person as the murderer. After an evidentiary hearing, the district court found that trial counsel did not perform deficiently and even if he had, Balbirnie failed to establish prejudice. The Court of Appeals disagreed with the district court on the question of trial counsel's performance, finding that the failure to introduce the 911 call fell below an objective standard for reasonably effective representation. But the panel ultimately affirmed the district court, holding that this deficient performance did not prejudice Balbirnie. The Supreme Court granted Balbirnie's petition for review.

ISSUES: (1) Performance; (2) prejudice

HELD: Balbirnie prevailed in the Court of Appeals on the issue of deficient performance and did not seek review of that decision. The State did not file a cross-petition for review either, although case law existing at the time the petition was filed suggests such a filing was not necessary. A cursory glance at the Court of Appeals' decision shows that it correctly ruled that trial counsel's failure to introduce the 911 call was not a strategic decision was, in fact, objectively unreasonable. A review of the evidence in its totality shows that if the call had been introduced there was a reasonable probability the jury would have made a different decision. This is true even though there was evidence of Balbirnie's guilt.

STATUTE: K.S.A. 60-420, -1507

criminal

criminal procedure—evidence—prosecutors
state v. martinez
shawnee district court—affirmed
no. 119,739—july 24, 2020

FACTS: Martinez convicted of first-degree premeditated murder and other crimes arising from a drive-by shooting. On appeal he claimed the prosecutor erred in closing arguments by saying “The defense has speculated about other peoples [sic] motives, but the State has actually presented evidence.” Martinez argues this impermissibly shifted the burden of proof and infringed on his constitutional protection against compulsory self-incrimination.

ISSUE: (1) Prosecutorial error

HELD: Prosecutor’s statements were within the wide latitude allowed in closing arguments. The comments, when read in context, appropriately explained how the evidence supported the State’s theory of the case, and did not offend Martinez’ constitutional right to a fair trial. Prosecutor did not comment on Martinez’ failure to testify or argue Martinez had to prove that he lacked a motive or that witnesses had a motive to lie. Prosecutor did not suggest the defense had any burden to do something in response to the State’s evidence or that 000Martinez needed to testify and explain his action. Nor did the prosecutor shift the burden or comment on Martinez’ failure to testify by pointing out the defense’s argument rested on an inference.

STATUTE: K.S.A. 60-439

criminal law—criminal procedure—jury instructions—
prosecutors—sentencing—statutes
state v. thomas
chautauqua district court—affirmed in part, reversed in part,
vacated in part, remanded
court of appeals—affirmed in part, reversed in part, vacated in part
no. 115,990—july 24, 2020

FACTS: Thomas convicted of aggravated battery, abuse of a child, and aggravated endangering of a child. On appeal he argued:  (1) district court erred by giving jury instructions that allowed the jury to convict him of aggravated battery if it found he intended the conduct but not the harm; (2) prosecutor improperly inflamed the passions and prejudices of jurors during closing argument by showing them photos of the child’s injuries and repeatedly telling them to acquit only if the jurors thought it was acceptable to inflict such injuries on “your child;” (3) cumulative effect of these two errors denied him a fair trial; and (4) district court erroneously scored Thomas’ 2001 out-of-state Virginia conviction for domestic assault and battery as a person crime. Court of Appeals affirmed in unpublished opinion, finding in part the aggravated battery jury instruction was erroneous but the error was harmless, and prosecutor’s if-you-think-it’s-okay statements did not encourage jurors to consider factors outside the evidence and law. Review granted.

ISSUES: (1) Jury instructions—aggravated battery; (2) prosecutorial error; (3) cumulative error; (4) sentencing

HELD: District court’s aggravated battery instructions were erroneous. Under State v. Hobbs, 301 Kan. 203 (2015), “knowingly” in elements of aggravated battery means more than just proving the defendant intended to engage in the underlying conduct, and requires State to prove the defendant acted when he or she was aware the conduct was reasonably certain to cause the result.

            Prosecutor’s If-you-think-it’s-okay statements were error. Panel’s reasons for finding that prosecutor’s statement did not encourage jurors to consider factors outside the evidence and law are examined and criticized as conflating the analysis of error with whether error was harmless. As to the child abuse charge the prosecutor’s error was harmless. Thomas’ conviction on this charge is affirmed. As to the aggravated battery charge for which instructional error was found, the combined impact of these errors must be considered.

            Cumulative error denied Thomas a fair trial on the aggravated battery charge. The erroneous jury instruction allowed the jury to find guilt based on a less culpable intent than required by the statute, and State’s repeated comments urged jury to convict based on emotional consideration rather than a reasoned and deliberate consideration of facts and law. The aggravated battery conviction is reversed and case is remanded for a new trial on this charge.   

              Assault and battery, as defined by Virginia common law, is broader than Kansas battery and could encompass behavior that is not a crime in Kansas. Under State v. Wetrich, 307 Kan. 552 (2018), district court incorrectly calculated Thomas’ criminal history score and should have scored the 2001 Virginia conviction as a nonperson crime. Remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e); K.S.A. 2015 Supp. 21-5413, -5413(b), -5413(b)(1)(A), -5413(g), -5602, -6811(e), 22-3414(3)

 

Kansas Court of Appeals

Civil

DIVORCE—PARENTING TIME
IN RE MARRIAGE OF DAVIS AND GARCIA-BEBEK
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 121,110—JULY 24, 2020

FACTS: Davis and Garcia-Bebek divorced in 2014. They shared joint legal custody of two minor children and Garcia-Bebek had permission to take the children to visit family in his native country of Peru every other year. In 2018, Davis sought to be awarded sole legal custody of the children after Garcia-Bebek was charged with three federal crimes. Perhaps because of his legal issues, Garcia-Bebek moved back to Peru. But he asked for reasonable parenting time which would include having the children visit him in Peru for up to 30 days at a time. The district court initially ruled in Garcia-Bebek's favor but was swayed to reconsider by Davis's argument that Garcia-Bebek's crimes showed that he was untrustworthy, making international parental kidnapping a realistic possibility. Garcia-Bebek appealed.

ISSUE: (1) Parenting time outside of the United States

HELD: The district court did not prevent Garcia-Bebek from exercising his parenting time. It just prevented him from doing so in Peru. There was nothing to prevent Garcia-Bebek from visiting the children in their home country. It is undisputed that there is an outstanding indictment in a federal criminal case and a warrant for his arrest in Kansas. This evidence is sufficient to support the district court's decision preventing the children from visiting Garcia-Bebek in Peru.

STATUTE: K.S.A. 2019 Supp. 23-3203(a), -3208(a)

Criminal

constitutional law—criminal procedure—probation—sentencing—statutes
state v. lyon
sedgwick district court—affirmed
no. 120,993—july 24, 2020

FACTS: Lyon convicted on his pleas to charges of aggravated battery, criminal possession of a firearm, and endangerment of a person. Pursuant to the plea agreement, district court imposed dispositional departure sentence of probation with underlying prison term. District court’s calculation of criminal history included Lyon’s 2010 Kansas aggravated burglary conviction as a person felony. Probation violation warrant issued four months later, alleging in part that Lyon committed the felony offense of aggravated battery/domestic violence. Trial judge revoked probation, finding Lyon had committed misdemeanor domestic battery. On appeal, Lyon claimed the trial court’s revocation of probation denied Lyon due process because the State failed to allege he committed a domestic battery in the probation violation. He also claimed his 2010 Kansas conviction should have been classified as a nonperson felony because the elements of the 2010 version of aggravated burglary are broader than the elements of the 2017 version of the crime.

ISSUES: (1) Due process—revocation of probation; (2) sentencingcriminal history

HELD: District court did not err in revoking Lyon’s probation. The warrant’s allegation that Lyon committed aggravated battery/domestic violence sufficiently notified him of what the State intended to prove, and it is uncontested that substantial competent evidence supports the trial court’s finding of domestic battery.

            The identical-or-narrower test in State v. Wetrich, 307 Kan. 552 (2018), which applies to out-of-state offenses and to Kansas offenses committed prior to the1993 implementation of the Kansas Sentencing Guidelines Act (KSGA), does not apply to the scoring of Lyon’s post-KSGA Kansas conviction. A post-KSGA Kansas crime is properly scored as a person offense if the crime was classified as a person offense when it was committed and when the current crime of conviction was committed and when the current crime of conviction was committed even if the prior version of the earlier crime’s elements are broader than the elements of the current version. Lyon’s alternative constitutional argument under Apprendi is not properly before the court and is not considered. Whether recodification and/or statutory amendments to aggravated burglary amounted to a repeal for purposes of K.S.A. 2017 Supp. 21-6810(d)(8) is examined, finding no such determination is required in this case. Regardless of the statutory amendments to aggravated burglary, district court properly scored Lyon’s prior conviction for aggravated burglary as a person offense.

STATUTES: K.S.A. 2019 Supp. 21-5109(b), -5111(i), -6801 et seq., -6804(c), -6804(p), -6809, -6810, -6811(e)(1); K.S.A. 2018 Supp. 21-5414(a), 22-3716, -3716(b)(1), -3716(c)(8)(A), -3716(c)(9)(B); K.S.A. 2017 Supp. 21-5807(b), -5807(b)(1), 5807(e), -6810(d), -6810(d)(8), -6810(d)(9), -6811(e)(3); K.S.A. 2011 Supp. 21-3715(a), -5103(d), -5413, -5427(3), -6811(d)(1); K.S.A. 21-3412, -3701, -3715, -3716, -4843, 22-3716

 

 

Tags:  constitutional law  criminal law  criminal procedure  divorce  evidence  habeas corpus  jury instructions  parenting time  probation  prosecutors  right to counsel  sentencing  statutes 

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March 27, 2020 Digests

Posted By Administration, Tuesday, March 31, 2020

Kansas Supreme Court

criminal

appeals—constitutional law—criminal law—criminal procedure—
evidence—juries—jury instruction—statutes
state v. Gonzalez
wyandotte district court—affirmed
no. 119,492—march 27, 2020

FACTS: Passenger (Espinoza) in car driven by Gonzalez shot and killed a man outside a bar. Gonzalez convicted of felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. During trial, district court refused to compel testimony of Espinoza who had already pleaded guilty and been sentenced for his participation. On appeal Gonzalez argued: (1) insufficient evidence supported the convictions; (2) the attempt and conspiracy convictions were multiplicitous; (3) district court’s aiding and abetting jury instruction erroneously lowered the State’s burden of proof on specific intent crimes; (4) district court erroneously permitted Espinoza to invoke Fifth Amendment privilege; (5) State’s peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence; (2) multiplicitous offenses; (3) jury instruction—aiding and abetting; (4) Fifth Amendment—failure to compel testimony, (5) Batson challenge, (6) cumulative error 

HELD: Evidence in this case established the pair’s intent to rob the victim and an agreement to commit aggravated robbery. Evidence included detective’s testimony, without objection, that provided a concrete context to ambiguous text messages.

            District court’s instruction accurately reflected Kansas’ aiding and abetting statute, but did not accurately state applicable caselaw limiting the statute’s use when defendants are charged with aiding and abetting specific intent crimes. In this case the legal error was harmless under the clear error standard.

             Multiplicity claim, raised for first time on appeal, is considered. Gonzalez’ conspiracy and the aiding and abetting attempted aggravated robbery convictions are not multiplicitous - each requires proof of an element not required by the other.

            Gonzalez’ failure to make an adequate proffer of what Espinoza would have testified about provides no basis for appellate review of whether trial court abused its discretion in not compelling the testimony.

            Jury selection in this case is examined. No abuse of district court’s discretion in finding Gonzalez failed to show purposeful discrimination given the State’s race-neutral reasons for its peremptory strikes.

            The single error found in this case does not support application of the cumulative error doctrine.

STATUTES: K.S.A. 2018 Supp. 21-5210, -5210(a), -5301, -5301(a), -5302(a), -5402(a)(2), -5402(c)(1)(D), -5420, 22-3414(3), -3601(b)(3), -3601(b)(4); K.S.A. 60-405

 

Kansas Court of Appeals

Civil

DIVORCE—PROPERTY DIVISION
IN RE MARRIAGE OF PERALES
SALINE DISTRICT COURT—AFFIRMED
NO. 120,306—MARCH 27, 2020

FACTS: Gary Perales is serving a life sentence in prison. At the time of his divorce from Cynthia Perales, Cynthia was supporting herself and the couple's four children. Gary did not complete a property affidavit, but he has been imprisoned since 2012. The district court held a hearing to consider separation of the couple's property. At the hearing, Cynthia provided a quitclaim deed showing that Gary had deeded the house to her and testified that she needed Gary's truck to transport herself and their children. Cynthia also testified that she made payments on both the house and truck after Gary's imprisonment. Gary disputed Cynthia's testimony about the quitclaim deed and claimed that he sold both the house and his truck to his sister. After weighing the evidence, the district court ruled that it would be most equitable to award Cynthia both the house and the truck. Gary appealed.

ISSUES: (1) Award of the house; (2) requirement that Cynthia compensate Gary

HELD: There is no evidence that the district court failed to consider the home as marital property subject to division. To the contrary, the district court appropriately considered the factors established by K.S.A. 2019 Supp. 23-2802(c). A division of marital property need only be equitable, not equal. There is a statutory requirement that property division may be accomplished by the payment of a "just and proper sum" to one party. In some cases, equity may allow that sum to be zero. The extraordinary facts of this case mean the district court's award of assets to Cynthia was equitable.

STATUTE: K.S.A. 2019 Supp. 23-2801, -2802(a)(1), -2802(a)(2), -2802(c)

criminal

criminal law—statutes
state v. lucas
sedgwick district court—affirmed
no. 120,510—March 27, 2020

FACTS: Lucas convicted of being a felon in criminal possession of a “firearm or knife,” K.S.A. 2017 Supp. 216304(c)(2). The weapon in this case was a folding knife 9 inches long when unfolded, 5.5. inches long when closed, with a 4.5 in. blade. Lucas argued the folding knife was not a “knife” as defined by K.S.A. 2017 Supp. 21-6304(c)(1).

ISSUE: Statutory definition of “knife”

HELD: District court did not err in concluding the folding knife in this case is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp. 21-6304(c)(1).

STATUTE: K.S.A. 2017 Supp. 21-6304, -6304(a)(2), -6304(c)(1), -6304(c)(2)

appeals—criminal procedure—discovery—evidence—jurisdiction
state v. mundo-parra
sedgwick district court—affirmed
no. 118,875—march 27, 2020

FACTS: Mundo-Parra convicted in 2005 on no contest pleas to kidnapping and rape. In 2017 while still serving his sentence, he asked prosecutors to provide State’s investigatory files in the case, including anything that might show his innocence. District court denied the request. Mundo-Parra appealed. State argued the appeal was not timely filed within 30 days of district court’s ruling.

ISSUES: (1) Appellate jurisdiction; (2) district court’s jurisdiction; (3) postconviction discovery

HELD: State’s jurisdictional hurdle is rejected. District court entered its order electronically, with no record in district court’s file that court clerk mailed a copy of the order to Mundo-Parra. After that order had been entered Mundo-Parra made several requests for a court ruling on his discovery request, and filed his notice of appeal well within 30 days of district court’s denial of Mondo-Parra’s last request for a ruling.

            District court had jurisdiction to consider Mundo-Parra’s request for postconviction discovery, even though there was no pending motion in the criminal case and no pending civil action challenging his confinement. There is no Kansas statute governing postconviction discovery, and no statutory limit on district court’s general jurisdiction over it.

            No provision in Kansas Code of Criminal Procedure covers postconviction discovery. Kansas cases are reviewed and guidance sought from rules and statutes in federal and state jurisdictions. Panel concludes postconviction discovery sought by the defendant should be allowed when the defendant shows it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. Mundo-Parra made no such showing in this case. Instead, his request is a classic fishing expedition with no stated connection to any claim that could lead to setting aside either his no-contest pleas or his convictions.

STATUTES: K.S.A. 2019 Supp. 21-2512, 22-3210(d)(2), -3212, -3213, 60-1507, -2103(a); K.S.A. 20-301

 

Tags:  appeals  constitutional law  criminal law  criminal procedure  discovery  divorce  evidence  juries  jurisdiction  jury instructions  property division  Saline District Court  Sedgwick District Court  statutes  Wyandotte District Court 

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September 14, 2018 Digests

Posted By Administration, Monday, September 17, 2018

Kansas Court of Appeals

Civil

DIVORCE — STATUTORY CONSTRUCTION
IN RE MARRIAGE OF GERLEMAN
DOUGLAS DISTRICT COURT – REVERSED AND REMANDED
NO. 118,457 – SEPTEMBER 14, 2018

FACTS: After a contentious divorce, the district court entered judgment against Robert Gerleman for back spousal maintenance owed to Jeannette, as well as judgment on Robert's previous agreement to pay Jeannette a portion of his military retirement pay. In an effort to collect past-due amounts, the district court issued orders of garnishment to Robert's employer. Robert's father was diagnosed with brain cancer in 2017, and Robert took off more than two weeks from work in order to assist his father during surgery and treatment. Citing K.S.A. 60-2310(c), Robert asked that the garnishment be released because of the illness and his inability to work. The district court refused to issue the release, and Robert appealed.

ISSUE: (1) Interpretation of K.S.A. 60-2310(c)

HELD: K.S.A. 60-2310(c) allows for a release of garnishment if the debtor is prevented from working for more than two weeks because of illness of the debtor or any family member of the debtor. Under the plain meaning of the statute, Robert's father is "any member" of Robert's family. There is no requirement in the statute that the family member be an immediate family member residing with the debtor. The affidavit submitted by Robert was sufficient to prove that he missed work for more than two weeks while caring for his father. The district court's decision is reversed, and the case is remanded for a factual determination about when the garnishment could resume.

STATUTES: K.S.A. 2017 Supp. 17-2205(a)(4)(A), 60-2310(c)

criminal

criminal procedure — motions — sentences — statutes
State v. Smith
Sedgwick District Court – sentence vacated, case remanded
No. 118,042 — September 14, 2018

FACTS: Smith convicted in 2006 of aggravated kidnapping. In 2014 he filed a K.S.A. 22-3504 motion to correct an illegal sentence, challenging the sentencing court’s criminal history scoring of a South Carolina burglary conviction as a personal felony in Smith’s criminal history. District court denied the motion and Smith appealed. In unpublished opinion the Court of Appeals vacated Smith’s sentence and remanded for resentencing. On remand, district court again found the South Carolina conviction to be a person felony, and denied Smith’s motion. Smith appealed. Issue before the panel centers on whether the holding in State v. Wetrich, 307 Kan. 552 (2018), was a change in the law that occurred after Smith was sentenced. State argued it was, and through retroactive application of the 2017 amendment to K.S.A. 22-3504, Smith’s sentence was not an illegal sentence.

ISSUE: (1) Sentencing and (2) Classification of an Out of State Conviction

HELD: Kansas Supreme Court’s decision in Wetrich was not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 2017 Supp. 22-3504(3).  Instead, the decision reinterpreted the meaning of the term “comparable offenses” within the Kansas Sentencing Guidelines Act. No final decision on whether the 2017 amendment to K.S.A. 22-3504 can apply retroactively in Smith’s case, but panel rejects State’s claim that that 2017 amendment defining an illegal sentence is jurisdictional. Here, the South Carolina burglary statute that Smith was convicted under is not identical to or narrower than the Kansas burglary statute in effect when Smith committed his current crime of conviction, thus based on holding in Wetrich, Smith’s prior South Carolina burglary cannot be scored as person felony for criminal history purposes. Sentence is vacated and case is remanded for resentencing to classify the South Carolina burglary as a nonperson felony.

STATUTES: K.S.A. 2017 Supp. 21-6810(a), -6811(d), -6811(e), -6811(e)(3), 22-3504(1), -3504(3); K.S.A. 1993 Supp. 21-4711(e); K.S.A. 21-3110(7), -3715, -4711(e), 22-3504, 60-1507(f)

Tags:  divorce  Douglas District  motions  Sedgwick District  statutory construction 

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