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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 21, 2020 Digests

Posted By Administration, Monday, August 24, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—evidence—jury instructions
state v. green
Montgomery District Court—affirmed
no. 118,366—August 21, 2020

FACTS: For offenses related to the killing of Green’s ex-wife’s boyfriend, a jury convicted Green of first-degree premeditated murder, aggravated burglary, and arson. On appeal he claimed: (1) district judge should have instructed jury on defense of voluntary intoxication; (2) district judge should instructed jury on lesser included offense of voluntary manslaughter; (3) district judge’s failure to give those two instructions deprived Green of his constitutional right to a jury trial; (4) the failure to instruct on voluntary manslaughter pushed jury to convict on first-degree premeditated murder even if jurors had reasonable doubt that State had proved its case; (5) district judge erred in admitting into evidence a videotaped interrogation of Green because officers repeatedly challenged his honesty and truthfulness during that interrogation; (6) district judge erred in refusing to give cautionary instruction about testimony from jailhouse informants; and (7) cumulative error denied him a fair trial.

ISSUES: (1) Jury instruction—voluntary intoxication; (2) jury instruction—voluntary manslaughter; (3) right to a jury trial; (4) constitutional right to due process; (5) evidence—videotaped statements; (6) cautionary instruction on informant testimony; (7) cumulative error

HELD: Under facts in case, an instruction on voluntary intoxication was not factually appropriate. No evidence of impairment that would prevent the formation of the necessary criminal intent. Instead, Green relies on evidence of his intoxication before and after the crime.

            District judge correctly denied Green’s request for a voluntary manslaughter instruction. No evidence that the sleeping victim did anything as Green entered his house that could be characterized as provocation.

            District judge’s failure to instruct jury on voluntary intoxication and voluntary manslaughter did not violate Green’s constitutional claim of being denied right to a jury trial where no evidence supported Green’s requests for those instructions.

            Green’s argument for extending Beck v. Alabama, 447 U.S. 625 (1980), to noncapital cases is rejected. Under facts in case, no error under Beck’s letter or its spirit.

            Green’s challenge to the admission of videotaped statements he made during police interview, raised for the first time on appeal, is not considered. Even if error to not redact the interviewers’ comments on credibility, the error would be far from dispositive. Court finds no established exception to the preservation problem, and notes this case is a poster child for adherence to the contemporaneous rule.

            District judge did not err in denying Green’s request for a cautionary instruction on informant testimony. Neither jailhouse informant was acting as an agent for the State when the informant first received incriminating information from Green, and multiple witnesses and other evidence corroborated each informant’s testimony.

            Cumulative error doctrine not applicable where there is no error or only a single error.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Green was impaired at the time of the crime. Disagrees with that portion of majority’s decision to the extent it implies the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTES: K.S.A. 2019 Supp. 21-5108(c), 60-261; K.S.A. 2018 Supp. 21-5205(b), -5404(a)(1); K.S.A. 60-404, -455, -1507

constitutional law—criminal law—criminal procedure—
evidence—prosecutors—statutes
state v. moore
reno district court—affirmed
no. 121,040—august 21, 2020

FACTS: Moore was convicted of first-degree premeditated murder. The trial judge allowed State to introduce incriminating statements Moore made during police interview, finding Moore made no unequivocal request for counsel. Trial judge also denied Moore’s request for voluntary intoxication instructions on first-degree premeditated murder and lesser-included crime of intentional second-degree murder. On appeal Moore claimed: (1) district judge should have suppressed evidence of his incriminating statements; (2) it was error to refuse to give voluntary intoxication instructions; (3) prosecutor committed error in closing argument; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Motion to suppress; (2) voluntary intoxication jury instruction; (3) prosecutorial error; (4) cumulative error

HELD: District judge did not err in denying the motion to suppress. Moore’s statement that “Well, I guess it’s lawyer time now then,” considered as a whole and in context, is ambiguous. And his statement ten minutes later that he was “done, all right,” followed by continued talking on his part did not transform his earlier statement into an unambiguous invocation of right to counsel.

            District judge did not err in denying voluntary intoxication instructions. Even assuming such an instruction was legally appropriate, it was not factually appropriate where there was no evidence of impairment negatively affecting Moore’s ability to form the requisite intent.

            No error found in prosecutor’s closing argument by stating that premeditation can be seen from Moore standing there and pulling the trigger over and over again, and by decrying the American tradition of criticizing the police. These statements did not make an equivalent to the forbidden argument that premeditation can be formed instantaneously, and did not appeal to jurors’ passions or prejudices. Prosecutor’s rebuttal statement that Moore may have been eliminating his competition was error because this unsupported speculation on Moore’s motive  argued facts not in evidence. In light of overwhelming evidence against Moore, however, this error was harmless.

            Cumulative error doctrine not applicable where only a single instance of a harmless prosecutorial error found.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Moore was impaired at the time of the crime. Disagrees with that portion of majority’s discussion on the issue to the extent it relies on State v. Green, __ Kan. __ (this day decided), that finds the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5205(b)

appeals—constitutional law—criminal law—
criminal procedure—jury instructions—statutes
state v. pattillo
shawnee district court—affirmed
no. 118,941—august 21, 2020

FACTS: Pattillo drove the van in which an occupant fired shots, killing Miller and hitting the residence which was occupied by Miller’s seven-year-old nephew. Jury convicted Pattillo of felony murder, aggravated assault for threatening Miller with a gun, felony discharge of a firearm, and aggravated endangering of a child. On appeal, Pattillo challenged whether the underlying felonies supported the felony-murder conviction, and whether sufficient evidence supported the convictions. He also claimed his convictions for discharge of a firearm and felony murder violated both the Double Jeopardy clause and K.S.A. 2019 Supp. 21-5109(b), and claimed the trial judge erred in instructing the jury.

ISSUES: (1) Underlying felonies—merger doctrine; (2) underlying felonies—sufficiency of the evidence; (3) underlying felonies—multiplicity; (4) multiple convictions and punishments; (5) jury instructions

HELD: Merger doctrine applies to Patillo’s aggravated assault conviction, and under facts in case, the aggravated assault merged with the homicide. If this were the only underlying felony, the felony-murder conviction would be reversed.

            Pursuant to K.S.A. 2019 Sup. 21-5402(c)(1), merger doctrine does not apply to Pattillo’s convictions for aggravated endangering a child and discharge of a firearm at a dwelling, but under facts in case, sufficient evidence supports both underlying felonies. Sufficient circumstantial evidence that Pattillo was aware of the risk to the seven-year-old who lived in the dwelling and consciously disregarded that risk. Statutes for child endangerment and aggravated child endangerment are compared to reject Pattillo’s argument that State was required to prove he knew a child was in the house at the time of the shooting. No language in K.S.A. 2019 Supp. 21-5601(b)(1) or the definition of reckless conduct requires that a person endangering a child must know a child is in danger. State v. Herndon, 52 Kan.App.2d 857 (2016), rev. denied 306 Kan. 1324 (2017), is factually distinguished. Sufficient evidence also supports Pattillo’s conviction for criminal discharge of a firearm at a dwelling, and Miller’s death occurred during the res gestae of the acts of discharging a weapon at a dwelling and of endangering a child.

            Cumulative punishments for both criminal discharge of a firearm and felony murder violate neither the Double Jeopardy Clause nor K.S.A. 2019 Supp. 21-5109. Same elements test in State v. Schoonover, 281 Kan. 453 (2006), is not employed where the legislature has expressed its intent to allow cumulative punishments for felony murder and those underlying felonies that do not merge with the homicide, such as discharge of a firearm at a dwelling. Pattillo can be sentenced for both felony murder and the enhanced punishment for discharging a firearm resulting in great bodily harm.

            No merit to Pattillo’s jury instruction claims. Invited-error doctrine precludes review of Patillo’s claims regarding the felony-murder jury instruction and the criminal discharge instruction. And Pattillo failed to show clear error in district judge’s failure to instruct jury on the lesser-included offenses of criminal discharge or of endangering a child.

STATUTE: K.S.A. 2019 Supp. 21-5109, -5109(b), -5109(b)(1), -5109(b)(2) -5202(j), -5402(a)(2), -5402(c), -5402(c)(1)(S),  -5402(c)(2), -5402(c)(2)(D), -5601(a), -5601(b)(1), -5601(c)(1), -6308, -6308(a)(1)(A), -6308(a)(3)(B), -6308(b), -6308(b)(1)(A), -6308(b)(1)(B), 22-3414(3)

K.S.A. 2015 Supp. 21-5402(c)(1)(O), -5402(c)(1)(S) -5601(b)(1). -6308(a)(1)(A)

 

Kansas Court of Appeals

CRIMINAL

EVIDENCE—JOINDER—PRIOR CRIMES
STATE V. BROWN
SALINE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,460—AUGUST 21, 2020

FACTS: In 2015 Brown was charged with three counts of rape and one count of aggravated indecent liberties for crimes involving his stepdaughter, K.N. While he was in custody, Brown wrote both K.N. and A.N., the victim's mother and his long-time companion. The contents of the letters caused the State to charge him with one count each of intimidation of a victim and a witness. Over Brown's objections, the information was consolidated for one trial. After a jury trial, Brown was convicted of all charges except for intimidation of a victim. He appealed.

ISSUES: (1) Admission in evidence of prior acts of domestic violence; (2) consolidation of information for one trial; (3) denials of motions for mistrial

HELD: At trial, the district court admitted evidence that Brown significantly damaged property at the home during arguments with A.N. The evidence was ostensibly admitted to prove why K.N. would be fearful to disclose the sexual abuse, even though the evidence showed that K.N. did not witness these events. There was extensive testimony at trial about these domestic violence events. Although the prior-crimes evidence was relevant and material, its probative value was diminished given the lengthy timelines over which the abuse occurred and the undisputed fact that K.N. did not witness the behavior. And the State never asked K.N. at trial if her failure to report was due, at least in part, to Brown's violent tendencies. The exhaustive testimony about Brown's prior crimes, the diminished probative value of the evidence, and the fact that the State could have proven the same thing with less prejudicial evidence, results in the conclusion that the district court erred by admitting the evidence. This error cannot be considered harmless and the case must be remanded for a new trial. It is undisputed that the State established the legal requirements to consolidate all charges. The letters to A.N. and K.N. put Brown's character into dispute that prejudiced him with the jury, all for little probative value. The district court erred by consolidating these cases for trial. There is no need to review errors in the district court's rulings on Brown's motions for mistrial. This case has already been reversed for two new trials.

STATUTE: K.S.A. 22-3202, -3303, 60-447(b), -455, -455(a), -455(b),

Tags:  appeals  constitutional law  criminal law  criminal procedure  evidence  joinder  jury instructions  prior crimes  prosecutors  statutes 

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August 7, 2020 Digests

Posted By Administration, Monday, August 10, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—
evidence—fourth amendment
state v. ellis
lyon district court—reversed and remanded;
court of appeals—affirmed
No. 120,046—august 7, 2020

FACTS: Police were called to check on welfare of a person (Ellis) in convenience store bathroom. Ellis stated she was okay and having stomach trouble. Police asked for identification, held Ellis’ drivers license to run warrant check, arrested her on an outstanding probation violation warrant, and found drugs and paraphernalia in subsequent search. State charged Ellis with drug offenses. She filed motion to suppress, arguing the seizure and subsequent search exceeded the scope of the encounter. State argued the attenuation doctrine set out in Utah v. Strieff, 579 U.S. __ (2016), legitimized the search. District court denied the motion and convicted Ellis in bench trial. Ellis appealed. Court of Appeals reversed, holding the investigatory detention exceeded the scope of the welfare check and the evidence obtained as a result should have been suppressed. 57 Kan.App.2d 477 (2019). State’s petition for review granted.

ISSUES: (1) Scope of welfare check; (2) attenuation doctrine

HELD: Under facts of the case, the officer lawfully engaged with Ellis and requested her identification. But police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention. Here, the officer had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Checking if Ellis “had some pick up order” exceeded the scope of the safety check. Ths constituted an unlawful seizure and consequent search.

              Application of the attenuation exception to the exclusionary rule is inappropriate on facts in this case. Factors in Strieff are applied finding all weigh against admissibility of the drug evidence under the attenuation doctrine: (1) a very short passage of time; (2) under Kansas caselaw the discovery of an outstanding warrant was not an attenuating factor in this case; and (3) the clarity of Kansas law forbidding the officer’s illegal conduct supports a finding of flagrant official misconduct. District court’s judgment is reversed and evidence seized subsequent to the initial conduct must be suppressed. Remanded for further proceedings.

CONCURRENCE (Stegall, J.)(joined by Luckert, C.J. and Wilson, J.): Concurs with the result but majority appears to back away from the more stringent requirements in Strief. Under Strief as outlined in State v. Tatro, 310 Kan. 263 (2019), when a preexisting valid warrant is discovered, the only question remaining is whether the unconstitutional conduct was purposeful or flagrant. Agrees with majority’s finding of flagrant misconduct, but would limit the analysis in these circumstances to that question only.  

STATUTES: None

constitutional law—criminal procedure—evidence—
jury instructions—prosecutors
state v. timley
shawnee district court—affirmed
No. 120,414—august 7, 2020

FACTS: Timley convicted of first-degree premeditated murder. During trial, Timley’s cellphone records including the cell towers accessed were admitted into evidence without objection, and a detective using Per Call Measurement Data (PCMD) from Sprint testified about the relative position of Timley’s phone throughout the day of the shooting. On appeal Timley claimed: (1) prosecutor erred during opening and closing arguments by making statements concerning the location of Timley’s phone at the time of the shooting; (2) district court erred in admitting the detective’s cell tower maps and accompanying testimony because detective lacked necessary expertise; (3) district court committed clear error by failing to instruct jury on intentional second-degree murder as a lesser included offense; (4) district court’s failure to instruct jury on lesser included offenses violated Timley’s right to due process; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) admission of evidence; (3)jury instruction on lesser included offense; (4) due process; (5) cumulative error

HELD: Prosecutor’s remarks during closing argument did not stretch the PCMD distance from a cell tower to Timley’s phone into a certitude, and thereby did not exceed the wide latitude extended to prosecutors. Prosecutor’s opening statement, by postulating that Timley’s phone was “exactly” at the site of the shooting, barely avoided error, but even if error, no possibility the prosecutor’s remark contributed to the verdict.

            Under facts of the case, no expert witness was needed. The detective’s exhibits and accompanying testimony did not require any specialized knowledge or expertise beyond that which he was demonstrated to possess.

            District court erred in failing to sua sponte instruct jury on lesser included offense of intentional second-degree murder, but under facts of the case, no clear error is found.

              In noncapital case, a district court’s failure to sua sponte instruct on lesser included offense does not violate a defendant’s constitutional right to due process. Based on State v. Becker, 311 Kan. 176 (2020), and State v. Love, 305 Kan. 716 (2017), no due process violation found in district court’s failure to issue a lesser included offense instruction sua sponte.

            Cumulative error claim is rejected. Only one harmless error found in district court’s failure to sua sponte instruct jury on a lesser included offense. Even if prosecutor’s opening statement was harmless error, it bore no relation to the instructional error.

CONCURRENCE (Biles, J.)(joined by Rosen, J. and Ward, S.J.): Disagrees that prosecutor’s opening statement was fair comment. Would hold it was error for prosecutor in opening statement to tell jury the cell tower data would reflect Timley’s exact location, but agrees the error is harmless for reasons stated by majority.

STATUTES: None

 

Kansas Court of Appeals

criminal

criminal law—insurance—jurisdiction—statutes
state v. rozell
wyandotte district court—affirmed
No. 121,094—August 7, 2020

FACTS: Rozell (Missouri resident) and Lopez (Wyandotte County, Kansas, resident) were in a car accident in Missouri. Rozell submitted bodily injury claim on Lopez’ State Farm insurance to a claims representative in Tennessee who discovered the Missouri hospital bill Lopez submitted had been altered to show a post-accident date. State charged Rozell in Wyandotte County with one count of making false information and one count of fraudulent insurance act, listing State Farm as the victim of Rozell’s crimes. District court granted Rozell’s motion to dismiss the charges for lack of jurisdiction. State appealed, arguing proximate result jurisdiction existed under K.S.A. 2017 Supp. 21-5106(b)(3) for a person who attempts to defraud a Kansas insurance policy issued to a Kansas resident, and Wyandotte County was the proper venue.

ISSUE: Proximate result jurisdiction

HELD: District court’s dismissal of the charges for lack of jurisdiction is affirmed. Kansas does not have proximate result jurisdiction to prosecute Rozell for making false information, K.S.A. 2019 Supp. 21-5824(a), or committing a fraudulent insurance act, K.S.A. 2019 Supp. 40-2,118(a), just because he allegedly intended to defraud a Kansas insurance policy. The law related to proximate result jurisdiction is reviewed. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person’s out-of-state criminal acts within Kansas only if the statutory language of that person’s charged crime considered such negative consequences. Here, the State failed to analyze the elements of the charged crimes. Neither the making false information statute, nor the fraudulent insurance act statute consider the negative consequences of a person’s out-of-state criminal acts in the language of the statute.

STATUTES: K.S.A. 2019 Supp. 21-40-2,118(a), -5106, -5106(b), -5106(b)(3), -5824(a), -5830(a)(2); K.S.A. 2017 Supp. 40-2,118(a), -2,118(e), -5106(b),-5106(b)(3), -5824(a) ; K.S.A. 1994 Supp. 21-3734(a)(2)

Tags:  Constitutional Law  criminal procedure  evidence  Fourth Amendment  insurance  jurisdiction  jury instructions  Lyon District Court  prosecutors  Shawnee District Court  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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July 2, 2020 Digests

Posted By Administration, Monday, July 6, 2020

Kansas Supreme Court

Civil

TORTS
HAMMOND V. SAN LO LEYTE VFW POST #7515
CLOUD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 118,698—JULY 2, 2020

FACTS: Jeffrey Hammond and his wife went to the San Lo Leyte VFW Post #7515. While at the VFW, Hammond encountered Travis Blackwood. The two men argued and Blackwood allegedly threatened to beat up Hammond in the bathroom. Hammond disengaged and returned to his table. Shortly thereafter, the manager of the VFW told Hammond that he needed to leave immediately and that he was banned from the club. The manager was backed up by Blackwood and his friends, who helped escort Hammond from the bar. As soon as the manager went back inside the bar, Blackwood and his friends physically assaulted Hammond. Hammond sued the VFW, but the district court granted summary judgment in favor of the VFW. The court of appeals reversed, finding that summary judgment was inappropriate. The VFW's petition for review was granted.

ISSUE: (1) Whether VFW owed a duty to Hammond

HELD: Kansas generally follows the Restatement (Second) of Torts § 344 regarding the scope of liability of owner/operators of commercial enterprises when it comes to acts of third persons. In order to be liable, the owner need not directly witness a physical altercation. Instead, a totality of the circumstances test is used to look at factors in addition to a prior attack. By granting summary judgment, the district court cut off analysis of whether an attack such as the one Hammond suffered was foreseeable. The VFW owed Hammond a duty to protect him from the dangerous acts of other bar patrons. Questions that must be answered on remand include whether Hammond's injury was foreseeable and whether the VFW breached its duty to Hammond.

STATUTES: No statutes cited.

criminal 

appeals—constitutional law—criminal procedure—motions—sentencing—statutes
state v. bradford
dickinson district court—affirmed
no. 120,683—july 2, 2020

FACTS: Bradford’s conviction on charges of capital murder, aggravated robbery, aggravated burglary, and felony theft resulted in 2003 resentencing for capital murder and the grid crimes. District court denied Bradford’s 2018 motion to correct an illegal sentence in which Bradford challenged his hard 40 sentence for capital murder. On appeal he argued for first time that the original and resentencing courts improperly classified his prior Missouri burglary convictions as person felonies, citing State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Motion to correct an illegal sentence

HELD: Bryant’s arguments fail because his sentence was not illegal when imposed. Under State v. Murdock, 309 Kan. 585 (2019)(Murdock II), State v. Weber, 309 Kan. 1203 (2019), and State v. Bryant, 310 Kan. 920 (2019), Bradford failed to establish the district court imposed an illegal sentence for purposes of K.S.A. 22-3504.

STATUTES: K.S.A. 2019 Supp. 21-6804, 22-3504(a), -3504(c)(1), -3504(c)(2), -3504(d), -3601(b)(3); K.S.A. 2018 Supp. 21-6811(e)(3), 22-3504(1), -3504(3); K.S.A. 21-3715, -3716, -4704, -4711(e), 22-3504; K.S.A. 21-4701 et seq., -4711(e) (Furse 1995)

appeals—criminal procedure—evidence—jury instructions—statutes
state v. gibson
riley district court—affirmed in part, vacated in part
no. 119,993—july 2, 2020

FACTS: State charged Gibson with first-degree felony murder and child abuse. A defense-hired psychologist (Dr. Steffen) interviewed Gibson and gave his report to a defense pathologist and to the State. Based on K.S.A. 60-437(b), district court held there was a knowing and voluntary waiver of privilege and allowed Dr. Steffen to testify about a statement Gibson made during the interview. Jury convicted Gibson as charged. Sentence imposed included hard 25 sentence for felony murder, consecutive 34-month prison term for child abuse, and lifetime postrelease supervision. On appeal Gibson claimed: (1) trial court erroneously held that Gibson waived a privileged communication with Dr. Steffen; (2) there was insufficient evidence that Gibson’s action was knowingly done and cruel; (3) use of “should” in jury instruction on State’s burden of proof discouraged jury from exercising its nullification power; and (4) cumulative error denied him a fair trial. He also claimed the sentencing court improperly imposed lifetime postrelease supervision instead of lifetime parole.

ISSUES: (1) Psychologist-client privilege waiver; (2) sufficiency of the evidence; (3) jury instruction—burden of proof; (4) cumulative error, (5) sentencing

HELD: District court did not err by allowing Dr. Steffen to testify to Gibson’s statement made during the interview. As to privilege issue, K.S.A. 74-5323(a)(communications with licensed psychologist) applies to this case, not K.S.A. 65-5810(a)-(b)(communications with licensed professional counselors). As to waiver, Gibson’s reliance on State v. Foster,  259 Kan. 198 (1996), is flawed and Foster is distinguished. District court’s ruling based on K.S.A. 60-437 is not challenged, and Gibson’s challenge under K.S.A. 2019 Supp. 60-426a(a), raised for first time on appeal, was not preserved.

            Totality of Gibson’s statements combined with other circumstantial evidence was sufficient to establish the required mental state element that Gibson’s action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3).

            As held in State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

            No trial errors found for application of the cumulative error doctrine.

            District court had no authority to order a term of lifetime postrelase supervision along with an off-grid, indeterminate life sentence. That portion of Gibson’s sentence is vacated.

STATUTES: K.S.A. 2019 Supp. 21-5202(i), -5402(a)(2), -5602(a)(3), 22-3212(c)(2), 60-426a(a); K.S.A. 22-3219(2), 60-437, -437(b), 65-5802(b), -5810, -5810(a), -5810(b), 74-5323, -5323(a)

constitutional law—criminal procedure—double jeopardy—jury instructions— trials
state v. kornelson
reno district court—affirmed; court of appeals—affirmed
no. 118,091—july 2, 2020

FACTS: State charged Kornelson in part with felony driving under the influence (DUI), under alternative theories of driving with excessive blood or breath alcohol concentration, and driving while incapable of safely operating a vehicle because of alcohol impairment. First trial ended when court declared a mistrial without objection from State or Kornelson when jury reported a deadlock on the DUI charge. Second jury convicted Kornelson on both DUI theories and on an open container charge. On appeal, Kornelson claimed for first time that the second trial violated his right against double jeopardy because the record did not reflect a “manifest necessity” for the mistrial. He also claimed the jury instruction on State’s burden of proof improperly discouraged jury from exercising its nullification power. Court of appeals affirmed in unpublished opinion, finding Kornelson failed to show that prosecutorial conduct “goaded” him into not objecting to the mistrial.  Review granted.

ISSUES: (1) Double jeopardy; (2) jury instruction—burden of proof

HELD: The second trial did not violate Kornelson’s double jeopardy rights. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court’s action. Contrary holding in State v. Graham, 277 Kan. 121 (2004), is overruled. Given the circumstances in this case, coupled with the deference and discretion Kansas caselaw affords the trial judge making these decisions, the record supports the determination that the jury was deadlocked under the manifest necessity standard.

            As held in  State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.         

STATUTES: K.S.A. 2019 Supp. 8-1017(a)(4), -1567(a)(2), -1567(a)(3). -1599(b); K.S.A. 20-3018(b), 60-2101(b)

Tags:  Appeals  Cloud District Court  Constitutional Law  Criminal Procedure  Dickinson District Court  Double Jeopardy  Evidence  Jury Instructions  Motions  Reno District Court  Riley District Court  Sentencing  Statutes  Torts  Trials 

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May 15, 2020 Digests

Posted By Administration, Monday, May 18, 2020

Kansas Supreme Court

 

CRIMINAL 

 

CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. MORRIS

SEDGWICK DISTRICT COURT—AFFIRMED

NO. 119,911—MAY 15, 2020

 

FACTS: Jury convicted Morris of charges including both first-degree premeditated murder and alternative charge of first-degree felony murder, aggravated kidnapping, and aggravated battery. On appeal, he claimed district court erred in refusing to give a requested instruction on  voluntary intoxication, and in admitting gruesome photographs of victim’s partially decomposed body that had been exposed to damage from animals. Morris also claimed cumulative error denied him a fair trial.

 

ISSUES: (1) Jury instructions—voluntary intoxication; (2) gruesome photographs; (3) cumulative error

 

HELD: District court did not err in denying Morris’ request for a voluntary intoxication instruction. While the requested instruction would have been a legally available defense to Morris’ first-degree murder charge and conviction, such an instruction was factually inappropriate because insufficient evidence supported that defense in this case.

            District court did not abuse its discretion in admitting photographs of victim’s body. Because Morrisargument clearly fails on the merits, no need to determine State’s argument that Morris failed to properly preserve this issue by failing to lodge a specific objection to the 12 photographs admitted. A few of the admitted photographs may have been repetitive, and many may have been gruesome, but they were relevant and admissible to show the manner and violent nature of victim’s death and to corroborate testimonies of witnesses having credibility issues.   

            No error supports Morris’ claim of cumulative error, and evidence against Morris was overwhelming.

 

STATUTES: K.S.A. 2016 Supp. 21-5205(b), -5408, -5413; K.S.A. 60-401(b), -404, -445

 

 

Kansas Court of Appeals

 

CIVIL

 

ATTORNEY FEES—JURY TRIAL—REMEDY
HARDER V. ESTATE OF FOSTER
LEAVENWORTH DISTRICT COURT—AFFIRMED AND REMANDED
NO. 118,845—MAY 15, 2020

 

FACTS: The case arises out of a real estate dispute between Evelyn Harder and Ronald Foster. In 2013, a jury found Foster guilty of negligent misrepresentation, intentional misrepresentation, and breach of contract. The real estate contract included a provision which required a party who breached the contract to pay attorney fees that the nonbreaching party incurred in connection with the default. The district court awarded Harder fees for the initial litigation but denied her motion for fees incurred while attempting to finalize the decision and journal entry. After this trial, Harder filed a second suit against Foster and his children, claiming that Foster fraudulently transferred all proceeds from the property sale to his family members, leaving him unable to pay Harder's judgment. Foster died during this litigation. His estate paid the judgment in full and the district court dismissed the action on summary judgment, finding that the payment extinguished any of Harder's claims. Harder's motion for attorney fees and costs was denied. These decisions were upheld on appeal except the panel determined the district court erred by denying Harder's motions for attorney fees and expenses in the 2013 case. The panel remanded the 2015 case to allow the district court to determine whether Harder could prove an exception to the American rule which requires parties to bear their own litigation costs unless a statute or contract expressly authorizes such an award. The district court's factfinding was limited to Harder's third-party claims. On remand, Harder claimed that she had a right to have a jury decide attorney fees and expenses for both the 2013 and 2015 cases. The district court disagreed, and the Court of Appeals granted Harder's application for an interlocutory appeal.

 

ISSUES: (1) Jury trial for attorney fees; (2) fees for 2013 case; (3) fees for 2015 case

 

HELD: The right to a jury trial in a civil action is not absolute. It is only guaranteed if such a right existed at common law at the time the Kansas constitution was adopted in 1859. There was no right to recover attorney fees at common law, and Kansas follows the American rule where fees are not awarded unless there is a statute or contractual provision so requiring. Kansas does recognize the third-party litigation exception to the American rule, but that exception did not exist in 1859. Accordingly, there is no right under the Kansas constitution to have a jury determine attorney fees and expenses. The 2013 judgment has been satisfied in full. Harder voluntarily chose not to present her attorney fees claim to the jury; her attorney expressly asked the trial court to resolve the matter, arguing in a pleading that the question of fees and expenses arising out of the real estate contract was not a jury decision. The error Harder now claims was invited by her counsel before the district court, and she is not entitled to relief. The prior decision on the 2015 case is upheld. Harder is not entitled to have a jury decide whether an exception to the American rule exists which would allow her to recover attorney fees for third-party conduct.

Tags:  attorney fees  criminal procedure  evidence  jury instructions  jury trial  Leavenworth District Court  remedy  Sedgwick District Court 

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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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April 17, 2020 Digests

Posted By Administration, Monday, April 20, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—evidence—jury instructions—sentences
state v. broxton
wyandotte district court—reversed and remanded
court of appeals—affirmed in part and reversed in part
no. 114,675—april 17, 2020

FACTS: Broxton convicted of second-degree murder, burglary, and felony theft. During trial, State introduced identity evidence of Broxton’s arrest in a 1996 Florida homicide case that closely mirrored the homicide in this case. District court denied Broxton’s request to admit evidence of a “No Information” document executed by the Florida prosecutor that indicated Florida lacked sufficient evidence to charge Broxton. District court found the document lacked probative value because it did not decisively state Broxton was innocent of that crime. District court also denied Broxton’s request for a felony-murder instruction, finding the instruction was legally inappropriate because State only charged Broxton with first-degree premeditated murder and felony murder. is not a lesser included offense. Broxton appealed claiming district court erred by: (1) failing to give a felony-murder instruction; (2) excluding from evidence the Florida homicide investigation document; and (3) improperly scoring Broxton’s prior Florida burglary conviction as person felony. Court of Appeals affirmed in unpublished opinion.

            As to the felony-murder instruction claim, panel found such an instruction was not factually appropriate in this case, and relying on State v. Young, 277 Kan. 588 (2004), explained that district court may instruct for felony murder even though the State only charged premeditated first-degree murder but was under no duty to do so. Broxton petitioned for review of panel’s decision that a felony-murder instruction was not factually appropriate. State cross-petitioned panel’s holding that a felony-murder instruction was legally appropriate.

            As to the exclusion of evidence claim, panel found the No Information document was relevant, but district court’s error in excluding this evidence was harmless. On appeal, Broxton challenged the panel’s harmlessness conclusion; State challenged panel’s finding of error.

            As to the scoring of Broxton’s prior Florida burglary conviction, a claim raised for first time on appeal, Broxton cites the change of law in State v. Wetrich, 307 Kan. 552 (2018).

            Review granted on Broxton’s petition and the State’s cross-petition.

ISSUES: (1) Jury instruction—uncharged crime; (2) admission of “no information” evidence

HELD: District court did not err in refusing to give a felony-murder jury instruction. Young predates the more precise framework for analyzing jury instructions adopted in State v. Plummer, 295 Kan. 156 (2012), and misstep in Young is apparent when viewed in light of Plummer. Because State did not charge Broxton with felony murder—and felony murder is not a lesser included offense of any crime Broxton was charged with—a felony-murder instruction was not legally appropriate in this case. No need to consider if the instruction would have been factually appropriate.

            District court erred by excluding the Florida “No Information” document from evidence, but any prejudice resulting from this exclusion was harmless in light of the entire record.

            The 1989 Florida burglary conviction must be scored as a nonperson felony. The Florida burglary statue prohibits a broader range of conduct than the Kansas statute, thus these are not comparable offenses. Under State v. Williams,  311 Kan. __ (2020), the change of law in Wetrich did not make Broxton’s sentence illegal, but did render it erroneous. Broxton must be resentenced correctly with his Florida burglary conviction scored as a nonperson felony. Sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 60-261, -455; K.S.A. 21-6810(d), -6811(c), -6811(j), 60-455

appeals—constitutional law—criminal law—sentences—statutes
state v. Corbin
saline district court—affirmed
no. 119,665—April 17, 2020

FACTS: Corbin entered no contest plea to first-degree premeditated murder. At sentencing he argued he was a person with an intellectual disability who was not subject to a mandatory minimum prison term by operation of K.S.A. 2019 Supp. 21-6622(b). District court disagreed and imposed a hard-25 life sentence. While Corbin’s appeal was pending, the legislature amended the statute to add other ways to establish the “significantly sub-average general intellectual functioning” standard. Kansas Supreme Court reversed and remanded for district court to reconsider Corbin’s motion using the new legislative criteria for determining intellectual disability. State v. Corbin, 305 Kan. 619 (2016). On remand, Corbin was allowed to present additional information. District court resentenced him to the original mandatory term, again finding Corbin was not a person with intellectual disability and. Corbin appealed.

ISSUE: Intellectual disability

HELD: District court did not abuse its discretion when it rejected Corbin’s motion and imposed a mandatory term of imprisonment. District court’s decision is reviewed as a “reason to believe” determination under K.S.A. 2019 Supp. 21-6622(b). Implications of extending State v. Thurber, 308 Kan. 140 (2018), outside the death penalty context are not argued or considered. 

STATUTES: K.S.A. 2019 Supp. 21-6622, -6622(b), 6622(h), 22-3601(b); K.S.A. 2015 Supp. 76-12b01(i); K.S.A. 60-2101(b), 76-12b01(i)

contracts—criminal procedure—evidence
state v. frazier
geary district court—reversed and remanded—court of appeals - reversed
no. 117,456—April 17, 2020

FACTS: Officers stopped car driven by Gould with passenger Frazier. Heroin was found, which led to search warrant in Ohio and discovery of drug evidence there. In Kansas, Frazier and Gould entered pleas pursuant to plea agreements that stated Ohio authorities agreed to dismiss and/or not file any charges resulting out of search warrant obtained as a result of the Kansas arrest. Prior to sentencing Frazier filed motion to withdraw plea, citing his discovery that an Ohio prosecutor had signed Gould’s agreement but not Frazier’s. District court denied the motion, finding the plea was fairly made and Frazier fully understood the consequences of his plea. Applying factors in State v. Edgar, 281 Kan. 30 (2006), Court of Appeals affirmed in unpublished opinion. Panel emphasized Frazier’s awareness that his attorney had not spoken with Ohio authorities, and they had not signed off on his plea agreement, and concluded Frazier was not misled or coerced about possibility of being charged in Ohio. Frazier petitioned for review, arguing district court abused its discretion because there were misleading or false statements contained in the plea agreement.

ISSUE: Withdrawal of plea—plea agreement  

HELD: Fundamental problem not addressed below is that Frazier was relying on a promise of conduct not made by a party to the plea agreement. Under basic principle of contract law, prosecutor and defense counsel presented Frazier with a contract that could be legally unenforceable against any Ohio prosecutor. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. No dispute in this case that the certainty of the lack of prosecution in Ohio was a significant factor in Frazier’s decision to enter into the plea agreement. District court’s decision finding no good cause for withdrawal of Frazier’s plea was based on errors of fact and law. Reversed and remanded to district court for Frazier to be permitted to withdraw his plea.    

STATUTE: K.S.A. 2019 Supp. 22-3210(d)(1)

appeals—constitutional law—criminal procedure
state v. harris
atchison district court—reversed and remanded; court of appeals—reversed
no. 117,362—april 17, 2020

FACTS: Harris was convicted in bench trial of felonious possession of marijuana. He appealed on four issues, claiming in part for first time that he did not properly waive his right to jury trial. Court of Appeals affirmed, 55 Kan.App.2d 579 (2018). Review granted on all issues.

ISSUE: Waiver of right to jury trial

HELD: Court addresses merits of the jury trial claim to prevent denial of fundamental right.  District court failed to properly apprise Harris of right to a jury trial and failed to ensure Harris understood the nature of the right he was waiving. Once Harris expressed his preference, district court simply accepted that Harris wanted the court to decide the matter and moved on without taking any steps to ensure Harris understood the right he was giving up. District court and Court of Appeals decisions are reversed. Case remanded to district court so Harris can be informed of right to a jury trial—and either exercise that right or properly waive it. Remaining issues in the appeal are not addressed.

STATUTES: None

CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. UK

LYON DISTRICT COURT—AFFIRMED
NO. 119,712—APRIL 17, 2020

FACTS: UK charged and convicted of first-degree premeditated murder. Based on evidence he had quarreled with victim, UK requested a voluntary manslaughter instruction as a lesser included offense. District court denied that request, finding no evidence of legally sufficient provocation. On appeal, UK claimed district court erred in not giving the jury the requested instruction, arguing district court improperly evaluated the degree of the quarrel as opposed to its existence, and further argued Kansas caselaw has erroneously conflated the separate statutory elements of “sudden quarrel” with “heat of passion.” UK also claimed for first time on appeal that district court erred in giving jury an unmodified PIK instruction that did not sufficiently define “premeditation.”

ISSUES: (1)  Jury instruction—voluntary manslaughter; (2) jury instruction—premeditation

HELD: UK’s request for a voluntary manslaughter instruction was legally appropriate but not factually appropriate. The mere existence of a “sudden quarrel” immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. In this case, no error in district court’s limited gatekeeping determination that evidence did not constitute legally sufficient provocation. And UK’s conflation-of-statutory-elements argument essentially asks the court to overturn precedent dating back to State v. Coop,  223 Kan. 302 (1978), which the court declines to do.

            District court did not err in defining premeditation for the jury. Though the PIK instruction used both “intent” and “intentional” within two sentences, in context the meanings    of those two words leave no doubt that “premeditation”—as a thought process conducted some time before an act—is clearly different than the intentional nature of the act itself.              

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5402(a)(1), -5404

 

Kansas Court of Appeals

Civil

ACQUIESCENCE—CHILD SUPPORT—JURISDICTION
IN RE HENSON
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 120,543—APRIL 17, 2020

FACTS: Chris and Gina Henson divorced in 1991. Gina was awarded primary custody of the couple's children; Chris was ordered to pay child support and half of the children's medical expenses. Several years after the divorce, Chris moved to California while Gina remained in Kansas. In 1994, Gina attempted to enforce Chris's child support obligations, a case was opened in California, and Chris began paying child support under an income withholding order. A few years later, the district court trustee asked the California court to increase the child support amount and require payment for medical bills and insurance. The California court significantly increased Chris's child support obligation and asked that additional funds be paid towards the arrearage. In 2002, Chris moved to Colorado. The court trustee registered the California judgment and Chris's employer began withholding income. Gina moved to determine an arrearage, and after Chris did not appear the district court issued a default judgment, basing the arrearage amount on the California judgment. Chris eventually moved to set aside the default judgment on grounds that the California judgment was void. That motion was denied, and the district court renewed its holding that the California judgment remains in effect and that any calculation of Chris's arrearage should be based off that judgment. Chris appealed

ISSUES: (1) Jurisdiction of California court; (2) validity of default judgment; (3) request for setoff; (4) income withholding order; (5) attorney fees

HELD: Chris's challenge about the validity of the California judgment involves a challenge to subject matter jurisdiction. As such, it may be raised at any time. Similarly, there is no time limit on a challenge to a void judgment. Chris did not acquiesce in the California judgment by paying child support under it; paying a void judgment cannot amount to acquiescence. When the district court modified Chris's child support obligation, the Uniform Reciprocal Enforcement of Support Act was in effect in California but not in Kansas. The Full Faith in Credit for Child Support Orders Act accounts for this, requiring each state to recognize ongoing child support obligations from other states and giving them power to modify child support obligations only under limited circumstances. The FFCCSOA preempts URESA with respect to child support modification in an URESA enforcement action. Under the FFCCSOA, only Kansas had jurisdiction to modify Chris's child support obligation. California's child support modification order is void and cannot be used as a basis for default judgment or to determine arrearages. The district court did not make adequate findings of fact to allow for a review of whether Chris is entitled to an equitable setoff for amounts he overpaid under the void California judgment. That fact-finding must be done on remand. The district court was required to issue an income withholding order after it determined the amount of Chris's arrearage. But because the order is based on the void California judgment, the withholding order is no longer legally enforceable. On remand, the district court must determine the appropriateness of enforcing any future income withholding order. The district court did not abuse its discretion by awarding Gina attorney fees for representation undertaken in district court. But Gina is not awarded attorney fees on appeal because the application for fees did not comply with Supreme Court Rule 7.07(b)(2).

STATUTES: 23 U.S.C. §1738B; K.S.A. 2019 Supp. 23-2715, -3103(a), -36,202, -36,205, -36,205(c), -36,313, 60-260(b)(4), -260(b)(5), -260(c); K.S.A. 23-451, -9,101, -3106(a)

Tags:  acquiescence  Appeals  child support  Constitutional law  contracts  criminal law  criminal procedure  evidence  jurisdiction  jury instructions  sentences  statutes 

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April 10, 2020 Digests

Posted By Administration, Monday, April 13, 2020

Kansas Supreme Court

Civil

EMERGENCY PROCEDURES—QUO WARRANTO
KELLY V. LEGISLATIVE COORDINATING COUNCIL
ORIGINAL ACTION—QUO WARRANTO GRANTED IN PART
NO. 122,765—APRIL 11, 2020

FACTS: Because of the global pandemic caused by the novel coronavirus, Governor Kelly issued an emergency proclamation and follow-up executive orders. Under statute, the state of disaster emergency could not last longer than 15 days unless ratified by a concurrent resolution of the Legislature. Within that 15-day window, the legislature adopted House Concurrent Resolution 5025, extending the Governor's declaration to May 1, 2020. Governor Kelly used her emergency powers to issue Executive Order 20-18 which temporarily prohibited "mass gatherings", defined as any event that would bring together more than 10 people in an enclosed space. Importantly, Executive Order 20-18 removed religious gatherings from a list of exempted activities. Acting under HCR 5025, the Legislative Coordinating Council convened, voted, and revoked Executive Order 20-18. Governor Kelly filed this original action in quo warranto, and expedited proceedings were allowed given the unusual circumstances.

ISSUE: (1) Authority of the LCC

HELD: Quo warranto is an appropriate procedure for questioning the LCC's authority to revoke Executive Order 20-18. The House of Representatives and the Senate are not appropriate parties to the action and are dismissed. But the governor has standing to pursue this action. HCR 5025 establishes a conditions precedent which must be met before the LCC can act if the Legislature is not in session, including input from the State Finance Council. The LCC cannot act until the State Finance Council acts. K.S.A. 46-1202 is a general statute which creates the LCC and gives it some authority. In this instance, that statute must give way to the more specific statute, which governs the revocation of executive orders during an emergency.

CONCURRENCE: (Biles, J.) While agreeing with both the outcome and rationale, Justice Biles questions whether HCR 5025 can confer oversight powers on the LCC at all.

CONCURRENCE: (Stegall, J.) The majority reached the right outcome using the right rationale. There are lingering issues with the Kansas Emergency Management Act relating to separation of powers. The plain language of HCR 5025 may produce absurd results, but the court has no authority to rewrite the resolution.

STATUTES: K.S.A. 2019 Supp. 48-925 -925(b); K.S.A. 46-1202, 48-924, -924(b), 60-1203

criminal 

criminal procedure—sentences—statutes
state v. coleman
saline district court—reversed and remanded 
court of appeals—affirmed
no. 118,673—april 10, 2020

FACTS: In 2013, 2014, and 2015 cases, Coleman granted downward dispositional departure sentences of probation with underlying prison terms. In November 2017 revocation hearing, district court ruled that because probation had been granted as the result of dispositional departures it had authority under K.S.A. 2017 Supp. 22-3716(c)(9)(B), effective July 1, 2017, to revoke probation and impose the underlying sentences without first imposing intermediate sanctions. Coleman appealed. In unpublished opinion, Court of Appeals reversed and remanded, holding the trial court erred in applying K.S.A. 2017 Supp. 22-3716(c)(9)(B) retrospectively. State’s petition for review granted.

ISSUE: Probation revocation

HELD: Court of Appeals judgment is affirmed. The K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer’s probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after that statute’s effective date.  District court judgment is reversed and case remanded with directions.

STATUTES: K.S.A. 2017 Supp. 22-3716, -3716(c)(9)(B); K.S.A. 2014 Supp. 22-3716(c)(11); K.S.A. 20-3018(b), 60-2101(b)

 

Kansas Court of Appeals

Civil

CONTRACTS—EMPLOYMENT
HEFNER V DEUTSCHER
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,201—APRIL 10, 2020

FACTS: Hefner, Deutscher, and Rottinghaus worked together in their optometry practice as a corporation. As an employee of the corporation, Hefner signed a noncompete agreement barring him from employment within a set geographic area for three years following his employment with the corporation. The contract specified that damages would be awarded for any breach or "threatened breach" of the contract. Over time, Hefner and Deutscher's relationship soured, and both parties proposed strategies that would allow Hefner to leave the corporation. Before the details could be finalized, Hefner located new office space and registered a new tradename with the Kansas Optometry Board. Hefner ultimately resigned instead of finalizing his exit agreement. And instead of practicing, Hefner decided he would rather teach optometry. It was thought that Hefner would work for the corporation for an additional six months, but Deutscher fired him for violating the noncompete clause. Hefner filed suit for breach of contract and wrongful termination. All parties filed competing motions for summary judgment. The district court granted Hefner's motion for partial summary judgment on his breach of contract claim and granted the corporation's motion for summary judgment on Hefner's wrongful termination claim. After a bench trial on the remaining breach of fiduciary duty claim, the district court found that Deutscher and Rottinghaus breached their fiduciary duty to Hefner because their motives for terminating Hefner were not made in fairness and good faith to the corporation. The district court awarded Hefner in excess of $1 million in damages. The corporation, Deutscher, and Rottinghaus appealed.

ISSUE: (1) Hefner's breach of contract claim

HELD: The use of the phrase "threatened breach" in Hefner's employment contract did not mean the same thing as an anticipatory breach. It had a broader meaning under the plain language of the employment contract, and encompassed actions which would lead a reasonable person to believe that a breach is imminent and likely to happen. The district court incorrectly defined "threatened breach", and this error resulted in the district court wrongly granting Hefner's motion for summary judgment. This case must be remanded to the district court for further action.

STATUTES: No statutes cited.

RATEMAKING—UTILITIES
HANSON V. KCC
STEVENS DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, REMANDED TO KCC
NO. 119,834—APRIL 10, 2020

FACTS: TKO Gas, LLC provides limited natural gas service in Kansas, operating as a middleman to resell gas to customers. TKO assumed contract rights from a previous provider and never went through a formal rate-setting process. Over time, some customers complained that TKO improperly calculated the heat content of the gas it was selling, resulting in a consistent 9.5% overcharge. Staff found that TKO changed the pressure at which is delivered natural gas. TKO acknowledged that this happened, but claimed it was industry standard practice to do so, and that the practice was in its contracts which were approved by the KCC. The KCC held a hearing and determined that none of the customers were entitled to relief. Even though TKO admitted to all of the customers' claims, the KCC ultimately determined that the rates charged by TKO were still reasonable, resulting in no harm to the customers. The district court reversed this finding, ruling that the KCC improperly focused on rate making while ignoring TKO's improper billing practices. The district court ordered the KCC to calculate the exact amount of overbilling and require TKO to pay refunds. TKO appealed.

ISSUE: (1) KCC's ability to address overpayment

HELD: The KCC is not limited to ratemaking or rate-reviewing functions. It has broad authority to determine whether any action is unreasonable or unfair. The KCC erred by only focusing on whether TKO's rates were reasonable, ignoring TKO's flawed billing methodology. TKO's practice of changing the pressure at which gas is distributed resulted in an overcharge and was neither honest nor fair. The KCC erred by not addressing it. But the district court erred by directing the KCC on how to fix this error. The KCC has total statutory control over crafting an appropriate remedy, and the case is remanded to the KCC.

STATUTE: K.S.A. 66-1,201, -1,205, -1,205(a), -1,206, -1,206(a), -1,207, 77-621(a)(1), -621(c)(4)

OIL AND GAS—TAX
IN RE TAX APPEAL OF RIVER ROCK ENERGY COMPANY
BOARD OF TAX APPEALS—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,387—APRIL 10, 2020

FACTS: In 2016, River Rock acquired producing gas wells, leases, and other assets in Kansas. After taking possession, River Rock learned that the counties in which the wells were located assigned a total appraised value of over $13 million. River Rock appealed while paying its taxes under protest. But River Rock only paid filing fees for a small percentage of its wells. River Rock sought an abatement of the filing fees it did pay. The Property Valuation Division of the Kansas Department of Revenue intervened to defend its valuation methods. After a hearing based on written testimony, BOTA upheld the counties' valuations. River Rock appealed.

ISSUES: (1) Valuing wells based on minimum lease values; (2) minimum leave values creating arbitrary and erroneous valuations; (3) whether BOTA properly considered the evidence; (4) whether BOTA erred when valuing equipment in the wells; (5) filing fee abatements

HELD: Personal property must be appraised at its fair market value. The Kansas Oil and Gas Appraisal Guide does not comply with this statutory directive because it prevents the gross working interest in any producing well from ever dropping to zero. The use of a minimum lease value on limited-production wells creates an assessed value higher than the actual gross working interest value, arbitrarily substituting the higher of two possible values. The Guide does not allow for the proper reconciliation of market values when the working interest value differs greatly from the minimum leave value. When an appraiser uses the minimum lease value, deductions for actual costs and other expense allowances are no longer used. This prevents sufficient consideration of these costs and does not lead to a fair market value of the property. Actual evidence shows that River Rock has wells with negative gross working interest, but the assigned minimum lease values do not reflect fair market value. BOTA did not ignore relevant evidence, rather overly simplified the evidence. River Rock cannot tie the value of its equipment to variable market conditions which ultimately affect the price of natural gas. BOTA properly valued River Rock's equipment with one exception: BOTA erred when valuing segments of underground poly flow lines. BOTA disregarded uncontroverted evidence that the lines could not be salvaged without destroying them. Filing fees are not allowed if they exceed the reasonable costs of administering the appeals. Neither BOTA nor River Rock properly calculated River Rock's filing fees, but the record on appeal does not contain enough information to determine how much abatement should have been granted to River Rock. If BOTA wants to deny River Rock's request for abatement, it must explain why.

STATUTE: K.S.A. 77-603(a), -613(e), -621(a)(1), -621(c), 79-329, -331(a), -501, -503a

GARNISHMENTS
STORMONT-VAIL HEALTHCARE V. SIEVERS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 121,109—APRIL 10, 2020

FACTS: Stormont-Vail received a consent judgment against Sievers for unpaid medical expenses. The amount of the debt is undisputed. Sievers refused to set up a payment plan and instead asked Stormont-Vail to garnish him. Stormont-Vail took him up on his offer and filed two requests for orders of garnishment: one from his employer and one to attach Sievers' other property held in bank accounts. Sievers objected to the garnishment order at his bank, arguing that the funds in his bank account were exempt from attachment because the funds met the definition of "earnings." The district court disagreed with Sievers, finding that once Sievers' paycheck was deposited into a bank account the money became garnishable. Sievers appeals.

ISSUE: (1) Whether wages deposited into a bank account can be garnished

HELD: Kansas statutes create limits on how much of a debtor's earnings can be attached by a nonwage garnishment order. Only an employer can act as the garnishee for a wage garnishment. The meaning of "earnings" is expressly tied to an employer-employee relationship, and once money paid as earnings is deposited into a bank account it loses its status as earnings. The money in Sievers' bank account was garnishable, even if the funds originated from his earnings.

DISSENT: (Standridge, J.) Wages paid by an employer are earnings. So wages electronically paid to Sievers by his employer via direct deposit into his bank account meet the statutory definition of earnings and are exempt from attachment through garnishment.

STATUTE: K.S.A. 2019 Supp. 60-2310(a)(1), 61-3504(a), -3504(b), -3505(a), -3506(g), -3507, -3507(a), -3508, -3509, -3510; K.S.A. 61-3502, -3505

criminal

constitutional law—criminal procedure—evidence—juries—jury instructions
state v. albano
riley district court—affirmed
no.120,767—april 10, 2020

FACTS: Albano convicted of distribution of a controlled substance within 1,000 feet of a school. On appeal she claimed: (1) district court erred by failing to give a limiting instruction concerning the admission of evidence of Albano’s prior drug convictions; (2) district court undermined jury’s power of nullification by instructing jury that it “must” follow the law and that it was jury’s “duty” to do so; and (3) sentencing court’s use of judicial findings of prior convictions to sentence Albano violated section 5 of Kansas Constitution Bill of Rights - the right of trial by jury.

ISSUES: (1) limiting instruction—prior crimes; (2) jury instructions—power of nullification; (3) sentencing—Kansas Constitution

HELD: State’s argument that Albano invited the limiting-instruction error is rejected. A defendant does not waive applicability of a limiting instruction simply by introducing K.S.A. 60-455 evidence because a limiting instruction is required regardless of which party introduced the evidence. Here, district court erred in failing to give a limiting instruction, but this failure was not clearly erroneous. Unclear how jury could have impermissibly relied on Albano’s prior convictions as general propensity evidence when it was undisputed she committed the acts in question, and jury’s acquittal on one of the three charges establishes that jury did not impermissibly rely on the prior convictions to establish guilt.

            District court did not err in giving legally correct instructions. State v. Boothby, 310 Kan. 619 (2019), determined that the same “must follow the law” language Albano challenged in one instruction did not interfere with jury’s power to nullify. The “duty” language challenged   in a second instruction is substantively identical—telling jury to follow the law.

            There is no authority for the proposition that section 5 provides greater protection than the federal jury trial right by requiring a jury to determine criminal history. And the section 5 jury trial right does not prohibit judicial findings of prior criminal history because there was no common law right to have a jury determine criminal history when the Kansas Constitution was adopted.    

STATUTES: K.S.A. 2019 Supp. 22-3414(3); K.S.A. 60-455

constitutional law—criminal procedure—evidence
state v. R.W.
douglas district court—affirmed
no. 120,854—April 10, 2020

FACTS: Juvenile R.W. was interrogated several hours at police facility after being picked up from high school by two police officers. State later charged R.W. with multiple criminal counts including rape and aggravated battery, and district court certified R.W. for trial as an adult. R.W. filed motion to suppress statements he made during interrogation. District court granted the motion, finding R.W.’s statements were not the product of a free and independent will, and citing the officers’ promises, benefits, and reassurances as resulting in R.W.’s will being overborne. State filed interlocutory appeal.

ISSUE: Fifth Amendment—juveniles

HELD: District court’s suppression order is affirmed. Totality of circumstances in this case suggest that R.W.’s confession was not the product of a free and independent will. Standard of care to be exercised in assessing the validity of a juvenile’s statements during interrogation without counsel present is discussed. Here, substantial competent evidence supported district court’s factual findings, and district court applied the correct legal analysis. Agreement stated with specific findings and considerations in district court’s comprehensive memorandum decision. Officers may have had good intentions, but statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of an interrogation have the potential to render a confession involuntary.

STATUTES: K.S.A. 2019 Supp. 22-3603, 60-460(f); K.S.A. 60-460(f)

Tags:  Constitutional law  contracts  criminal procedure  emergency procedures  employment  evidence  garnishments  juries  jury instructions  oil and gas  quo warranto  ratemaking  sentences  statutes  tax  utilities 

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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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