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March 10, 2017, Appellate Court Digests
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Kansas Supreme Court – Civil

Employment–statutory interpretation
Miller v. Board of County Commissioners
Wabaunsee District Court – Vacated and remanded
Court of Appeals – Reversed
No. 111,569 – March 10, 2017

Miller was appointed to a four-year term as Wabaunsee County Appraiser by the Wabaunsee Board of County Commissioners. Miller's employment contract included a procedure for disciplinary proceedings if they became necessary. Half way through Miller's term, he met with the Board to discuss concerns about his job performance. At that time, he was given a letter informing him that he could resign or be terminated. Miller refused to resign. The Board met with Miller in an executive session. He was terminated at that meeting and the Board voted to immediately stop paying his salary and benefits. Miller sought review of the termination by the director of property valuation. After hearing witnesses, the ALJ who heard the case voted to reinstate Miller and award back pay because the Board failed to follow the contractual disciplinary procedures. On appeal, the district court reversed the ALJ. When the ALJ looked at the case again, without reviewing the contract, Miller's termination was upheld. The district court affirmed that decision, as did the Court of Appeals. The Supreme Court granted the petition for review.

ISSUE: Did the Board have authority to immediately end Miller's employment, salary, and benefits

The removal of a county appraiser is governed by statute. That statute allows the Board to terminate employment, but it is less clear on whether salary and benefits should be paid during the appeal process. After reading all applicable statutes in harmony, the language shows that when a Board terminates an appraiser, who then seeks timely review, the appraiser's employment, salary, and benefits are not ended unless and until the director of property valuation decided to uphold that termination. The Board's termination is conditional and the director of property valuation is the ultimate decision maker on the appraiser's employment.

CONCURRENCE (Johnson, J.): Justice Johnson agrees with the ultimate holding but writes to clarify his belief that the hearing before the director of property valuation is a de novo proceeding with an unlimited standard of review.
STATUTES: K.S.A. 2014 Supp. 19-431, -431(a), -431(b); K.S.A. 79-1404

Kansas Supreme Court – Criminal

Criminal procedure–immunity–statutes
State v. Evans
Johnson District Court – Affirmed
Court of Appeals – Reversed
No. 112,000 – March 10, 2017

State charged Evans with aggravated battery. Evans claimed he stabbed victim in self defense, and filed motion for grant of immunity under Kansas self-defense immunity statute, K.S.A. 2016 Supp. 21-5231. District court granted the motion and dismissed the charges. State appealed. court of appeals reversed, 51 Kan.App.2d 1043 (2015), applying approach adopted by court of appeals in State v. Hardy (an approach rejected by the Kansas Supreme Court in an opinion handed down this same date). Evans’ petition for review granted.

ISSUE: Kansas self-defense immunity statute

Applying analysis adopted in State v. Hardy, 305 Kan. __ (March 10, 2017), district court properly granted Evans statutory immunity pursuant to K.S.A. 2016 Supp. 21-5231. Court of appeals’ decision was reversed, district court’s grant of immunity and dismissal of charges is affirmed.

STATUTE: K.S.A. 2016 Supp. 21-5231

Kansas Supreme Court – Criminal

criminal procedure–immunity–statutes
State v. Hardy
Sedgwick District Court – Affirmed
Court of Appeals – Reversed
No. 110,982 – March 10, 2017

Flores instigated fight with Hardy who then shot him. State charged Hardy with aggravated battery. Hardy claimed self defense, and filed motion for grant of immunity under the Kansas self-defense immunity statute, K.S.A. 2016 Supp. 21-5231(a). District court granted the motion, finding State failed to carry burden of showing probable cause that Hardy was not justified in his use of force. State appealed. Court of appeals reversed and remanded, holding a district court must conduct an evidentiary hearing on the motion, and must view the evidence in light most favorable to the State. 51 Kan.App.2d 296 (2015). Hardy’s petition for review granted

ISSUE: Kansas self-defense immunity statute

District court’s grant of immunity and dismissal of case against Hardy is affirmed. Procedural rules governing a district court’s resolution of a defendant’s claim of immunity pursuant to K.S.A. 2016 Supp. 21-5231 are addressed. Upon such a motion, district court must consider totality of the circumstances, weigh the evidence without deference to the State, and determine whether State carried its burden to establish probable cause that defendant’s use of force was not statutorily justified. That determination must be premised on stipulated facts or evidence, on evidence received at evidentiary hearing, or both. Timing of such a hearing is left to district court’s discretion, with sensitivity to fact that question of immunity should be settled as early as possible to fully vindicate the statutory guarantee. In rendering a probable cause determination, district court must consider statutory presumptions in K.S.A. 2016 Supp. 21-5224 when they are factually implicated. In this case, the district court took the correct procedural approach to resolving Hardy’s motion for immunity, substantial competent evidence supported the district court’s factual findings, and district court correctly concluded that the statutory presumption from K.S.A. 2016 Supp. 21-5224 was triggered under the facts.

STATUTES: K.S.A. 2016 Supp. 21-5221(a)(2), -5222(a), -5224, -5224(a)(1)(A), -5231, -5231(a); K.S.A. 2014 Supp. 21-5231; K.S.A. 21-3219, 60-402

Kansas Supreme Court – Criminal

constitutional law–criminal procedure–evidence–statutes
State v. Howard
Johnson District Court – Affirmed
Court of Appeals – Affirmed
No. 110,439 – March 10, 2017

Police stopped car for traffic offenses and arrested driver (Howard) and noticeably pregnant passenger on outstanding warrants. After observing torn plastic baggie in center console, officers searched car and found pistol concealed under floor mat. Based on Howard’s prior Missouri felony conviction, State charged him with possession of a firearm by a convicted felon, K.S.A. 2011 Supp. 21-6304(a)(2). Howard filed motion to dismiss, arguing the the fully discharged “suspended imposition of sentence” (SIS) in the Missouri case was not a conviction. District court denied the motion, and denied Howard’s motion to suppress firearm evidence obtained in the warrantless search of the car. District court granted State’s motion in limine to preclude evidence regarding Howard’s purchase of the firearm. Howard entered guilty plea and appealed, claiming: (1) he was not a convicted felon because his completed Missouri SIS was not a conviction; (2) firearm evidence was obtained through illegal search of his car; and (3) district court should not have excluded evidence regarding his purchase of the firearm as this evidence would have supported mistake of fact defense. Court of appeals affirmed the conviction, holding in part the search was lawful based on probable cause plus an exigent circumstance, and that the passenger’s reclined seat added nothing to increase the probability that the vehicle contained contraband. 51 Kan.App.2d 28 (2014).

ISSUES: (1) Prior felony conviction, (2) motion to suppress—reclined car seat and probable cause, (3) motion in limine

A completed Missouri SIS is a conviction for purposes of K.S.A. 2011 Supp. 21-6304(2).  Inapplicable in this case and left for another day is the contention that considering a completed Missouri SIS to be a conviction results in an absurd interpretation of the statute because Kansas Legislature does not provide method by which Kansas firearms dealer must uncover whether a person has a Missouri SIS before a sale.

The search of Howard’s car was legal under the exigent circumstances plus probable cause exception. Officer made the reasonable inference that passenger was trying to hide something from officer’s view by reclining her seat. This inference, plus the officer’s experience and the clear plastic baggie with ripped corner, were enough to show a fair probability that the vehicle contained contraband or evidence of a crime.

District court did not err in excluding evidence that Howard passed a federal background check before purchasing the firearm.

CONCURRENCE and DISSENT (Rosen, J., joined by Johnson, J.):

Concurred with majority’s holding on first and third issues, but would reverse and remand because there was not probable cause to search Howard’s vehicle. Agreed with panel’s conclusion that the reclined passenger seat did not add to the probable cause analysis. While appropriate for officer to infer passenger had reclined seat, it was unreasonable to definitively infer that she did so in response to officer’s pursuit. And officer’s experience and plastic baggie with a torn corner were not enough, on their own, to establish probable cause to search a vehicle.

STATUTE: K.S.A. 2011 Supp. 21-6304, -6304(a)(2)

Kansas Supreme Court – Criminal

constitutional law–criminal procedure–evidence–jury instructions
State v. Mattox
Johnson District Court – Convictions affirmed, sentence vacated and remanded
No. 111,162 – March 10, 2017

Mattox convicted of premeditated murder, aggravated kidnapping, and aggravated robbery.  Hard-50 sentence imposed. On appeal he claimed:  (1) sentence was imposed in violation of Alleyne v. United States, 570 U.S. __ (2013); (2) jury instructions on aiding and abetting left jury with incomplete understanding of the law, the inference of intent instruction was misleading, and he was entitled to multiple acts instruction; (3) he was deprived right to present a defense because district court refused to accept Mattox’s no contest plea to the two lesser charges and excluded certain hearsay evidence; (4) his confession should have been suppressed because he invoked right to counsel, his Miranda waiver was not knowing and voluntary, and the confession was not voluntary because it was induced by interrogators’ promises of leniency; (5) State expert psychologist’s evaluation of Mattox without defense counsel present violated Sixth Amendment; and (6) cumulative evidence denied him a fair trial.

ISSUES: (1) Sixth Amendment - Sentencing, (2) Jury Instructions, (3) Right to Present a Defense, (4) Admissibility of Confession, (5) Sixth Amendment - State Expert’s Evaluation, (6) Cumulative Error

State concedes Sixth Amendment violation. As in appeal by codefendant convicted in separate trial, State v. Hilt, 299 Kan. 176 (2014), district court, rather than jury, found existence of aggravating factors by a preponderance of the evidence, rather than beyond a reasonable doubt. Sentence vacated and remanded for resentencing. 

No error in the aiding and abetting instructions given in this case. Similar claim was rejected in Hilt. Intent instructions were proper and Mattox cannot make threshold showing that this is a multiple acts case. 

District court could reasonably concluded that Mattox’s mental defect defense to the premeditated murder charge cast doubt on the sufficiency of the factual basis underlying Mattox’s no contest pleas. The hearsay evidence was properly excluded. The declarant was not testifying, and the contemporaneous utterance requirement for the excited utterance exception was not met.

Under facts in case, Mattox did not unequivocally invoke right to counsel, and both his Miranda waiver and his subsequent confession were knowing, intelligent, and voluntary. Concern noted that detectives feigning concern for Mattox’s only chance to tell his side of the story came perilously close to interfering with Mattox’s opportunity to clarify that he wanted a lawyer present.

An accused does not have a Sixth Amendment right to have counsel present during a psychiatric evaluation. 

No error supports the cumulative error claim.

STATUTES: K.S.A. 2015 Supp. 21-6620, 22-3601(b)(3), 60-460, -460(d)(2), -460(l); K.S.A. 21-3205, -3209(1), -3209(2), -3210, -3210(a), -3210(a)(4), 22-3210, -4503, 60-404

Kansas Court of Appeals – Criminal

Due process–Jury trial
State v. Johnson
Sedgwick District Court – Reversed and remanded
No. 113,228 – March 10, 2017

Johnson was charged with several firearm-related felonies. On the second day of the trial, a juror let the bailiff know that the juror saw the trial judge sleeping during the first day of trial. When asked, the judge admitted on the record to sleeping. Trial counsel did not ask for a mistrial and proceeded through the rest of the trial. On appeal, however, Johnson argued that the sleeping judge resulted in a structural error that resulted in the denial of his fundamental right to a jury trial.

ISSUES: (1) Did the judge sleeping on the bench result in structural error and a fatally flawed jury trial, (2) Was Johnson required to waive a jury trial on the issue of whether he had a prior felony conviction, (3) Was the district court required to instruct the jury on the lesser included offense of misdemeanor criminal discharge of a firearm

The invited error doctrine is inapplicable when a constitutional error is structural – when the error is so intrinsic that it cannot be cured by anything but a new trial. A judge sleeping during a criminal trial is a structural error, regardless of whether there is any proof of prejudice. Johnson stipulated to his prior adjudication that kept him from legally owning a firearm. There is no evidence that the stipulation was anything but voluntary and nothing about the process violated Johnson's right to a fair trial. A rational factfinder could have found Johnson guilty of the lesser included misdemeanor offense, making it error to refuse to give the requested instruction.

DISSENT (Buser, J.):

While judge has an obligation to remain active during proceedings, Judge Buser would refrain from categorizing the error as structural, especially where there is no evidence of prejudice.

STATUTE: K.S.A. 2013 Supp. 21-5109(b)(1), -6308(a)(1)(B), -(a)(3)(B), -6308(b), 22-3414(3)