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May 1, 2020 Digests

Posted By Administration, Monday, May 4, 2020

Kansas Supreme Court

criminal

constitutional law—criminal law—criminal procedure—due process—jury instructions
state v. craig
geary district court—affirmed
No. 119,660—may 1, 2020

FACTS: Craig was charged with first-degree murder under theories of premeditated murder and felony murder, conspiracy to commit first-degree premeditated murder, aggravated robbery, conspiracy to commit aggravated robbery, and criminal possession of firearm by a convicted felon. After district court instructed jury on felony murder, premeditated murder, and intentional second-degree murder as a lesser included offense of premeditated murder, jury found Craig guilty of both first-degree felony murder and second-degree intentional murder. Craig filed motion for new trial because jury convicted him of two murder offenses for the same killing. District court denied the motion and instead sentenced Craig on the more serious felony murder. Craig appealed claiming the two murder convictions for the same killing violated his due process rights, and after jury was discharged the two guilty findings were legally irreconcilable. He also claimed the district court should have instructed jury on voluntary intoxication given evidence of Craig’s use of alcohol and marijuana and unclear communication shortly before the shooting;

ISSUES: (1) Two murder convictions for the same killing; (2) voluntary intoxication instruction

HELD: District court’s jury instructions in this case are examined, finding them to be legally correct. Craig failed to show that his first-degree murder sentence was imposed in violation of due process right to have jury find each element of the offense beyond a reasonable doubt, or that jury’ first- and second-degree murder verdicts were so irreconcilable as to require a new trial. Irreconcilable verdicts in State v. Hernandez, 294 Kan. 200 (2012), are distinguished. District court properly sentenced Craig on the first-degree felony-murder conviction.

            Question of whether conspiracy to commit a robbery is a specific intent crime, making a voluntary intoxication instruction legally appropriate, remains unresolved in this case because such an instruction was not factually appropriate. Evidence about Craig’s state of mind does not establish any impairment that deprived him of the ability to form the requisite mens rea; no evidence of any memory loss or inability to recall events before or during commission of the crimes; and Craig never relied on voluntary intoxication in defending himself.

STATUTES: K.S.A. 2019 Supp. 21-5109(b)(1), -5402(a)(2), -5402(d), -5403(a)(1), 22-3414(3), -3601(b), -5205(b); K.S.A. 22-3421, 60-2101(b)

constitutional law—criminal procedure—evidence—Fifth Amendment—motions
state v. lemmie
Saline district court—affirmed
No. 119,439—may 1, 2020

FACTS: For shooting and killing a victim during a robbery, jury convicted Lemmie of first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. In pretrial motion to suppress evidence obtained and derived from his phones, Lemmie alleged a detective obtained the phone passcodes in violation of his Fifth Amendment right against self-incrimination. District court denied that motion, finding disclosure of the passcodes was not compelled and the codes were not testimonial. Lemmie appealed, claiming: (1) the detective’s testimony about Lemmie giving her the phone passcodes violated his constitutional right against self-incrimination; (2) district court erred by admitting two statements made by a coconspirator after Lemmie shot the victim, and by asking State if the contemporaneous statement hearsay exception applied; (3) insufficient evidence supported his first-degree murder conviction; (4) district court erred by admitting K.S.A. 60-455 testimony that Lemmie was upset over a missing methamphetamine pipe.

ISSUES: (1) Fifth Amendment—testimonial status of passcodes and passwords; (2) hearsay evidence; (3) sufficiency of the evidence, (4) K.S.A. 60-455 evidence, (5) cumulative error

HELD: Kansas Supreme Court has not yet addressed the “rich and rapidly developing area of the law” of the testimonial status of passcodes and passwords, and does not do so in this case. Any possible constitutional error arising from district court’s refusal to suppress evidence that a detective obtained phone passcodes from Lemmie was harmless. No incriminating evidence from the phones was introduced at trial.:

            District court did not err in admitting the coconspirator’s two statements. Even assuming the statements qualified as hearsay, they were admissible as statements of a coconspirator, K.S.A. 60-460(i)(2), one of the grounds on which the district court judge relied. A district judge admitting evidence on two grounds, including one originating with the court, when the one already advanced by a party would suffice is not judicial misconduct.

            State provided more than ample evidence to convict Lemmie of first-degree murder.

            No abuse of district court’s discretion arising from admission of K.S.A. 2019 Supp. 60-455 evidence of Lemmie being upset over a missing methamphetamine pipe. No error in district court’s conclusion that the missing methamphetamine pipe was relevant to motive.

            Cumulative error doctrine does not apply where there is only one assumed nonreversible error with respect to passcode testimony.          

STATUTES: K.S.A. 2019 Supp. 60-455, -455(a), -455(b); K.S.A. 60-404, -455, -460)d), -460(d)(1), -460(d)(2), -460(i)(2)

criminal law—criminal procedure—evidence—jury instructions—sentencing
state v randle
sedgwick district court—affirmed
no. 119,720—may 1, 2020

FACTS: Randle and two others fired shots into apartment, killing a victim inside. Randle was convicted of first-degree murder and criminal discharge of firearm. He requested a dispositional/durational departure sentence, listing four mitigating factors; sentencing court denied the request, finding no substantial and compelling bases for departure. On appeal Randle claimed district court erred by: (1) refusing Randle’s request for jury instruction on unintentional but reckless second-degree murder as a lesser included offense of first-degree murder; (2) allowing hearsay statements into evidence; (3) admitting gruesome and unnecessary photographs and crime scene video into evidence; and (4) refusing to grant Randle’s motion for a departure sentence.

ISSUES: (1) Jury instruction—lesser included offense; (2) alleged hearsay evidence; (3) photographic and video evidence; (4) sentencing—mitigating factors

HELD: Misstatement in State v. Fisher, 304 Kan. 242 (2016), for analyzing jury instruction claims is identified and disapproved. Under Kansas caselaw, when a defendant requests a lesser included offense instruction, an appellate court reviews the evidence in the light most favorable to the defendant. Randle’s requested instruction was legally appropriate, but even assuming the instruction was factually appropriate, the error was harmless. Overwhelming evidence supports the first-degree premeditated murder conviction. And jury, provided with choice between first-degree premeditated murder and second-degree intentional murder, convicted Randle of the more severe crime that required a premeditation finding.

            District court did not err by admitting the two out-of-court statements. Alleged hearsay statements are examined, finding one was not hearsay. The other was classic hearsay, but allowed because the statement was made by a person present at trial and available for cross-examination, K.S.A. 2019 Supp. 60-460(a).

            No error in admitting eight of the 128 autopsy photos, selected to explain the nature and extent of fatal injuries, their location on the body, and coroner’s opinions based on injuries depicted. No error in admitting the six-minute crime scene video. Similar argument, that a crime scene video was irrelevant, cumulative, and more prejudicial than probative, was rejected in State v. McCaslin, 291 Kan. 697 (2011). No error in admitting two photographs of Randle while in custody, in street clothes, and without handcuffs or other restraints. Randle did not challenge relevancy, and this evidence was not unduly prejudicial.

            Randle’s reliance on previous cases holding his listed mitigating factors to be substantial and compelling reasons to support a departure sentence is rejected. Mitigating factors that may justify departure in one case may not justify a departure in another case.

STATUTES: K.S.A. 2019 Supp. 21-6620,: -6815(a), 22-3601(b), 60-459(a), -460, -460(a), -460(i)(2); K.S.A. 60-404, -2101(b)

 

Kansas Court of Appeals

Civil

SEXUALLY VIOLENT PREDATOR
IN RE CARE AND TREATMENT OF RITCHIE
BARTON DISTRICT COURT—AFFIRMED
NO. 121,627—MAY 1, 2020

FACTS: Ritchie was civilly committed to the Larned State Hospital under the Kansas Sexually Violent Predator Act. By April 2017, Ritchie earned the right to transitional release. He remained in the transitional release program until February 2019, which he was removed from the program and returned to Larned State Hospital. The removal was prompted by concerns about Ritchie's behavior and staff's belief that he was a danger to the general public; Ritchie violated the rules of transitional release in many ways, including several occasions where he contacted his victims. The State scheduled Ritchie's probable cause hearing but had to delay it because of scheduling conflicts for counsel and witnesses. Ritchie moved to dismiss the motion to revoke transitional release, arguing that the two-day timeframe for the probable cause hearing was jurisdictional.

ISSUES: (1) Is the statutory requirement that a hearing be held within two working days jurisdictional; (2) whether Ritchie was entitled to return to transitional release

HELD: As with most time standards of the KSVPA, the "two working days" requirement of K.S.A. 59-29a08(k) is directory, not mandatory. Any delay beyond the two days did not violate Ritchie's constitutional rights. He was still heard in a meaningful time and manner. There was sufficient evidence that Ritchie violated the terms of his conditional release placement, justifying his return to confinement at Larned.

STATUTE: K.S.A. 2019 Supp. 59-29a01, -29a01(b), -29a08(j), -29a08(k), -29a10

Tags:  Constitutional law  criminal law  criminal procedure  due process  evidence  Fifth Amendment  jury instructions  motions  sentencing 

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December 20 and December 27, 2019 Digests

Posted By Administrator, Friday, January 3, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—search and seizure
State v. Chavez-Majors
butler district court—affirmed on issue subject to review and remanded
court of appeals—affirmed in part
No. 115,286—december 20, 2019

FACTS: Chavez-Majors convicted of aggravated battery while driving under the influence, based on motorcycle accident that caused injury to another person. Park Ranger first at scene requested EMS to draw blood from unconscious Chavez-Majors. District court denied motion to suppress the blood test results, finding the warrantless search was reasonable under probable cause plus exigent circumstances exception which satisfied the  three-prong test in Schmerber v. California, 384 U.S. 757 (1966). Court of appeals affirmed the denial of motion to suppress, but reversed the conviction because Chavez-Majors had not knowingly and voluntarily waived his right to jury trial. 54 Kan. App. 2d 543 (2017). Review granted on Chavez-Majors petition for review of panel’s decision affirming the denial of motion to suppress. State’s cross-petition for review of the jury trial issue was denied.

ISSUES: (1) Warrantless search—probable cause; (2) warrantless search—exigent circumstances

HELD: Court of Appeals decision regarding probable cause is affirmed. Probable cause determination is supported by Chavez-Majors driving at high rate of speed around curve and into parking lot he knew held parked cars and congregating people, and by strong odor of alcohol on Chavez-Majors’s breath.

As to whether exigent circumstances supported the warrantless blood draw, lower courts did not have benefit of Mitchell v. Wisconsin, 588 U.S. __ (2019). Because Chavez-Majors has not had a chance to fully litigate his claim under the change of law created by Mitchell, case is remanded to district court for an evidentiary hearing and district court ruling on exigency in light of Mitchell.

STATUTES: K.S.A. 2013 Supp. 8-1567; K.S.A. 22-3216

Kansas Court of Appeals

Civil

ATTORNEY PERFORMANCE—HABEAS CORPUS
BAKER V. STATE
LABETTE DISTRICT COURT—AFFIRMED
NO. 118,695—DECEMBER 20, 2019

FACTS: Baker pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. Baker had originally been charged with aggravated criminal sodomy, a charge which could have resulted in a death penalty when combined with the murder charge, but it was dismissed under the plea agreement. At the sentencing hearing, defense counsel did not present any evidence regarding Baker's mental health. Baker received a hard 20 sentence for the felony murder, plus an additional 147 months for the other convictions. All of these sentences were presumptive for Baker's convictions, but Baker received the aggravated sentence rather than the standard sentence. Baker's convictions were affirmed on direct appeal. He timely filed a K.S.A. 60-1507 motion, plus three amended motions, in which he claimed that trial counsel was ineffective for failing to ensure that his grid sentences were ordered to run concurrently and for failing to investigate his mental health issues and present mitigating evidence. The district court denied the motion after an evidentiary hearing, and Baker appeals.

ISSUES: (1) Timeliness of the K.S.A. 60-1507 motion; (2) merits of Baker's motion

HELD: The State did not raise the timeliness issue before the district court. They waived any appellate argument by not arguing timeliness in district court. The panel assumes without deciding that trial counsel's performance was deficient under the totality of the circumstances. The only issue to decide is whether trial counsel's deficient performance was so prejudicial that Baker was harmed. The district court did not correctly apply the Strickland test and did not properly evaluate the evidence. But even when the correct test is used, the district court correctly determined that no prejudice resulted from trial counsel's deficient performance.

DISSENT: (Leben, J.) Trial counsel made no argument for anything less than the maximum possible sentence. There was a great deal of evidence regarding Baker's life experiences and mental health conditions, and that could have made a difference at sentencing. Trial counsel was prejudicially ineffective for not presenting that evidence at sentencing. He would remand this case for resentencing before a different judge.

STATUTE: K.S.A. 2018 Supp. 60-1507(f)(1); K.S.A. 60-1507

criminal 

criminal procedure—sentences—statutes
state v. gibson
geary district court—sentence vacated and case remanded
No. 120,657—december 20, 2019

FACTS: When Gibson was arrested on drug charges, he misidentified himself as his brother. The brother was then arrested for failure to show up for a hearing. Relevant to this appeal, Gibson was convicted of identity theft and perjury. Presumptive sentence was probation, but district  court granted State’s motion for a dispositional-departure sentence of prison, finding the harm from Gibson’s crimes was greater than usual. Gibson appealed.

ISSUE: (1) Dispositional departure sentence

HELD: Statutory-counterpart rule discussed. K.S.A. 2018 Supp. 21-6815 provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for departure in that departure direction. Because less-than-typical harm is in list of mitigating factors but greater-than-typical harm is not included in list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. Sentence vacated and case remanded for resentencing.   

STATUTES: K.S.A. 2018 Supp. 21-6815, -6815(c)(1)(E); K.S.A. 2005 Supp. 21-4716(c)(2)(D); K.S.A. 2003 Supp. 21-4716(c)(1)(B); K.S.A. 1997 Supp. 21-4716(b)(1)(E); K.S.A. 1994 Supp. 21-4716(b)(2)(A)

constitutional law—due process—criminal procedure—probation—statutes
state v. gonzalez
sedgwick district court—remanded with directions
No. 120,179—december 27, 2019

FACTS: Following a hearing and determination of competency, Gonzalez convicted and sentenced to 52 month prison term with dispositional departure to probation for 36 months. Some seven months later he was arrested for violating probation. Noting the statutory processes for competency evaluations do not explicitly apply to probation revocation proceedings, district court revoked probation without addressing competency concerns raised by appointed counsel. Gonzalez appealed, claiming a constitutionally protected right to be mentally competent at his probation hearing.

ISSUE: (1) Probation revocation—constitutional due process

HELD: Gonzalez’ Fourteenth Amendment claim was not waived by counsel’s assertion of rights notwithstanding her failure to mention “constitution” or “due process.” Competency for due process purposes in revoking probation, an issue not yet addressed by U.S. Supreme Court or Kansas Supreme Court, is examined. The State may not revoke probation of a convicted felon who is not mentally competent at the time of the revocation hearing. In this case, district court acknowledged there were legitimate reasons to believe Gonzalez may not have been competent. The absence of a statutory procedure for competency evaluations in criminal cases after defendants have been sentenced is not a barrier to district court’s inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. District court erred in revoking Gonzalez’ probation without determining he was mentally competent. On remand, district court should determine if a retrospective competency evaluation can be done. If State agrees to forgo that accommodation, or district court determines such an evaluation is not feasible, then the revocation must be set aside with a new revocation proceeding and competency evaluations ordered if genuine competency issues remain. Due process requirements for statutory sanctions short of revocation are distinguished and not addressed.  

STATUTES: K.S.A. 2018 Supp. 22-3303, -3716(b)(2), -3716(c)(1)(B), - 3716(c)(11), K.S.A. 22-3202, -3301 et seq., -3302(1)

criminal procedure—probation—statutes
state v. tearney
wyandotte district court—affirmed
No. 120,340—december 20, 2019

FACTS: In 2014, district court imposed prison term but granted dispositional departure for 36 months’ probation. Probation revoked in 2016. In unpublished opinion, court of appeals reversed the revocation and remanded because district court erroneously believed Tearney had served two intermediate sanctions. While that appeal was pending, Legislature enacted the dispositional departure exception, K.S.A. 2017 Supp. 22-3716(c)(9)(B), on July 1, 2017. On remand, district court applied the new exception and again revoked probation. Tearney appealed, claiming the exception does not apply retroactively.

ISSUE: (1) Probation revocation—retroactive application of dispositional departure exception

HELD: K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant’s probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This exception applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. Retroactive application of the exception does not result in manifest injustice. Accordingly, the exception applies to Tearney’s 2016 probation violations even though her violations occurred before the exception took effect.

STATUTES: K.S.A. 2017 Supp. 22-3716(c)(9)(A), -3716(c)(9)(B), -3716(c)(12); K.S.A. 2014 Supp. 22-3716(c)

Tags:  Butler District Court  Constitutional law  criminal procedure  due process  Geary District Court  habeas corpus  Labette District Court  motions  probation  search and seizure  Sedgwick District Court  sentences  statutes 

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