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March 6, 2020 Digests

Posted By Administration, Monday, March 9, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE DANIEL VINCENT SAVILLE
NO. 121,050—MARCH 6, 2020

FACTS: Saville stipulated that he violated KRPC 1.7(a)(2) (conflict of interest). A hearing panel found that Saville also violated KRPC 1.8(e) (providing financial assistance to client); 3.4(c) (fairness to opposing party and counsel); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Saville engaged in a sexual relationship with a client for over eight years; during the relationship Saville took nude photographs and videos of the client. He also provided her with financial assistance. When the client was charged with a felony, Saville wrote a fee agreement which contemplated that he would represent her for free as long as she did not get back together with a boyfriend.

HEARING PANEL: The hearing panel found numerous conflicts of interest in Saville's representation of his client. He had a prior disciplinary history after being convicted of possession of drug paraphernalia, and there was a lengthy, on-going pattern of misconduct. The panel did acknowledge mitigating factors, including Saville's history of drug use and emotional problems, and his cooperation with the disciplinary process. The disciplinary administrator's office suggested discipline of a one-year suspension. Saville requested that he be allowed to continue to practice, subject to the terms of his proposed probation plan. The hearing panel believed that probation was not appropriate for the rule violations in this case. Ultimately, the hearing panel recommended a six-month term of suspension with the requirement that Saville undergo a reinstatement hearing before being allowed to practice again.

HELD: Because it was not properly preserved, the Court makes no finding as to whether an attorney's payment of bail for a client is a per se violation of Rule 1.8(e). In this case, the undisputed facts show that Saville violated Rule 1.8(e). There was also sufficient evidence that Saville violated Rules 3.4(c) and 8.4(d) by speaking with a sequestered witness. After considering the recommended discipline and noting that Saville refused to accept responsibility of some of the disciplinary counts, a majority of the Court imposed discipline of a two-year suspension from the practice of law. Saville must undergo a reinstatement hearing before returning to practice. A minority of the Court would have imposed the one-year suspension requested by the disciplinary administrator's office.

criminal

appeals—constitutional law—criminal law—sentences—statutes
state v. carter
sedgwick district court—affirmed;
court of appeals—reversed
no. 116,223—march 6, 2020

FACTS:: Carter robbed a store using a Taser. Jury convicted her of aggravated robbery. At sentencing, district court found Carter had used a dangerous weapon to commit the crime, and marked the box on the journal entry that a deadly weapon had been used to commit a person felony. Sentence included registration under the Kansas Offender Registration Act (KORA). Carter appealed her conviction and the registration requirement. Court of Appeals affirmed the conviction but reversed the registration requirement, finding Carter did not use a deadly weapon during the robbery. 55 Kan. App. 2d 511 (2018). State’s petition granted for review of the panel’s registration requirement ruling.

ISSUES: (1) Appellate jurisdiction; (2) “deadly weapon”—K.S.A. 2019 Supp. 22-4902(e)(2)

HELD: Court has appellate jurisdiction over the registration issue under K.S.A. 2019 Supp. 22-3602(a).

            Phrase “deadly weapon” in K.S.A. 2019 Supp. 22-4902(e)(2) is interpreted. “Deadly weapon” when used as element of a crime is distinguished from use of that phrase in a nonpunitive civil regulatory scheme. Under plain meaning of clear statutory language, substantial competent evidence supported district court’s finding that Carter used a deadly weapon in committing the robbery. No departure from majority of Court’s consistent holdings that a district judge’s deadly weapon finding under K.S.A. 2019 Supp. 22-4902(e)(2) does not constitute impermissible judicial fact-finding prohibited by Apprendi.

DISSENT (Rosen, J.)(joined by Beier, J.): Would hold the district court erred in ordering Carter to register under KORA. He first disagrees with majority’s underlying premise that KORA is not a sentencing statute that increases the punishment for certain convictions, and believes State v. Petersen-Beard, 304 Kan. 192 (2016), was wrongly decided for reasons stated in J. Johnson’s dissent in Doe v. Thompson, 304 Kan. 291 (2016). Second, analyzing KORA as sentencing statute, district court’s sentencing pronouncement of “dangerous” weapon did not satisfy KORA, and journal entry box for “deadly” weapon had no effect. Third, a deadly weapon finding at sentencing would have violated Apprendi. And fourth, regardless of whether KORA is punitive or not, State did not produce evidence showing Tasers to be deadly. Majority’s reliance instead on “weight of growing common knowledge of Tasers’ danger” is criticized.

STATUTES:: K.S.A. 2019 Supp. 22-3602(a), -4902(e)(2); K.S.A. 2011 Supp. 21-5420, -5420(b)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal law—criminal procedure—
evidence—jury instructions—statutes
state v. hayes
sedgwick district court—affirmed
no. 120,417—march 6, 2020

FACTS: While dark, Hayes used phone to film neighbor A.W. through her window in a state of undress. Jury convicted Hayes of breach of privacy. On appeal he claimed:: (1) insufficient evidence supported the conviction, arguing A.W. did not have a reasonable expectation of privacy because her blinds were not closed, and the phone he used to record A.W. was not concealed; (2) district court erred in admitting evidence of a receipt that Hayes had purchased a spywatch; (3) because he admitted he recorded A.W., identity was not a material fact thus district court erred in admitting testimony of other neighbors that Hayes had been looking in their windows; (4) verdict form erroneously placed “guilty” before “not guilty; (5) district court erred by instructing jury that you “should” find the defendant guilty if you have no reasonable doubt; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Breach of privacy; (2) evidence—watch receipt; (3) evidence - prior bad acts; (4) verdict form; (5) jury nullification; (6) cumulative error

HELD:: Kansas courts have not addressed the phrase “reasonable expectation of privacy” as used in K.S.A. 2019 Supp. 21-6101(a)(6). Fourth Amendment is distinguished from right to privacy. Fact-specific two pronged test is applied, finding sufficient evidence for jury to conclude that A.W. had a reasonable expectation of privacy in her bedroom even though the window blinds were up. Also, Hayes was concealed when he recorded A.W., thus the phone he used was concealed as well. Statute does not require any additional concealment of the recording device.

            District court did not erroneously admit evidence that Hayes bought a recording device designed to be unobtrusive. Hayes failed to preserve this issue for appeal, but even if preserved, the purchase of a watch that secretly records people was relevant to whether Hayes secretly recorded A.W.: And even if issue had been properly preserved and even if receipt was not relevant, admission of the watch receipt was harmless.

            District court did not erroneously admit prior bad acts evidence. The evidence was admissible to show identity because at time of the rulings Hayes had not admitted that he was the one recording A.W.

            Following established Kansas Supreme Court holdings, district court did not err by placing “guilty” above “not guilty” on the verdict form.

            District court did not err in using PIK instruction to instruct jury that “[i]f you have no reasonable doubt…, you should find the defendant guilty.”:

            There can be no cumulative error in case with at most one error that was found to be harmless.

STATUTES: K.S.A. 2019 Supp. 21-5222(a), -6101, -6101(a)(6), 60-261, -455; K.S.A. 2014 Supp. 21-6101(a)(6); K.S.A. 2012 Supp. 21-6101(a)(3); K.S.A. 60-401(b), -404

Tags:  Appeals  constitutional law  criminal law  criminal procedure  evidence  jury instructions  sentences  statutes  suspension of license 

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