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  • 10 Aug 2018 11:45 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 112,492: State of Kansas v. Loarn Earl Fitzgerald II

    Archived oral argument video

    The Supreme Court affirmed a Court of Appeals decision reversing Fitzgerald's Cowley County District Court conviction for aggravated criminal sodomy. Fitzgerald had been charged based on a statute prohibiting a person from causing someone to engage in sodomy with a third party. At trial, the State presented evidence that Fitzgerald had caused a friend's daughter to engage in oral sodomy with him rather than a third party. Fitzgerald argued on appeal the State failed to present any evidence to establish the charged crime. The Supreme Court agreed. If the State charges a crime under one criminal statute but proves a crime under a different criminal statute, a defendant's conviction is reversible for insufficient evidence.

    Appeal No. 112,523: State of Kansas v. Stacy A. Gensler

    Archived oral argument video

    The Supreme Court vacated Gensler's sentence for driving under the influence and remanded for resentencing. Gensler was convicted and sentenced in Sedgwick County District Court for DUI based in part on two previous DUIs under a Wichita municipal ordinance. The court held that those convictions could not be used to enhance the sentence for his current DUI. The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

    Appeal No. 115,278: State of Kansas v. David Sheldon Mears

    Archived oral argument video

    The Supreme Court vacated Mears' sentence for driving under the influence and remanded for resentencing. Mears was convicted and sentenced in Sedgwick County District Court for DUI based in part on two previous DUIs, one of which was based on a Wichita municipal ordinance. The court held that the Wichita DUI could not be used to enhance the sentence for his current DUI The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

    Appeal No. 115,196: State of Kansas v. Christopher J. Schrader

    Archived oral argument video

    The Kansas Supreme Court vacated Schrader's sentence for involuntary manslaughter while driving under the influence and remanded to Sedgwick District Court for resentencing. Schrader's criminal history score was based in part on categorizing a July 2012 conviction in Wichita Municipal Court as a person felony. The court held that a conviction under the Wichita DUI ordinance does not count as a prior DUI, scored in this case as a person felony, because it prohibits a broader range of conduct than state law.

    Appeal No. 115,277: State of Kansas v. Nicholas W. Fisher

    Summary calendar; no oral argument

    The Supreme Court vacated Fisher's sentence for driving under the influence and remanded for resentencing. Fisher was convicted and sentenced in Sedgwick County District Court for DUI based in part on two previous DUIs, one of which was based on a Wichita municipal ordinance. The court held that the Wichita DUI could not be used to enhance the sentence for his current DUI. The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

    Appeal No. 115,834: State of Kansas v. Jonell K. Lloyd

    Archived oral argument video

    A Sedgwick County jury convicted Lloyd of first-degree premeditated murder, felony murder, and abuse of an infant victim. In 2014, the Supreme Court affirmed the conviction but remanded the case for resentencing so that a jury, not the judge, would make specific factual findings relating to enhancing his sentence. The sentencing jury found two aggravating factors, and Lloyd was again sentenced to a minimum term of 50 years. He appealed from that sentence. Writing for a unanimous court, Justice Eric Rosen affirmed the new sentence. Responding to Lloyd's contention that one of the lead witnesses for the prosecution had been coerced into making statements against him and her testimony from the first trial should not have been read to the jury in the sentencing trial, the court determined that any error was harmless because that witness's testimony had already become known to the jury through the testimony of police investigators, and no objection was made to their testimony. The court also rejected Lloyd's claim that the State was required to prove that bodily harm was an element of any previous felony serving as an aggravating factor. Instead, it sufficed for the State to prove that great bodily harm resulted from the previous felony, whatever the elements of the crime might be.

    Appeal No. 111,554: State of Kansas v. Archie Joseph Patrick Dooley

    Archived oral argument video

    The Supreme Court affirmed the McPherson County District Court ruling that Dooley violated the terms of his probation, but reversed the Court of Appeals decision affirming the district court's revocation of Dooley's probation and imposition of his original underlying prison sentence. The court ordered further proceedings concerning compliance with the legislature's 2013 amendments to the probation revocation statute, which established a graduated sanctioning scheme for probationers who violate the terms of their probation release. The Supreme Court directed the district court to either impose a statutorily prescribed intermediate probation violation sanction or to make the finding that it was bypassing the intermediate sanction provisions as authorized by statute.

    Appeal No. 112,549: State of Kansas v. Willie Fleming

    Archived oral argument video

    Fleming challenged an aggravated robbery jury instruction because the instruction, which alleged he took property, was broader than the complaint, which specified a cellphone and wallet were the property taken. Fleming proposed language substantially similar to the language the Johnson County District Court used that he complained of on appeal. The State asserted invited error should preclude review of Fleming's alleged error. The Supreme Court rejected Fleming's arguments that K.S.A. 22-3414(3) allows review of all claims of error related to a jury instruction and that raising a constitutional issue precludes application of the invited error doctrine. Instead, courts should carefully review an appellant's actions in causing an alleged error and the context in which those actions occurred in deciding whether to apply the invited error doctrine. Here, the information about what items were alleged to support aggravated robbery was included in the charging document. The charging document also referenced other items in connection with other charges against Fleming. Fleming's counsel still proposed an instruction that referenced "property" rather than the specific property alleged in each count of the complaint. Under these circumstances, the court concluded the invited error doctrine precluded review of Fleming's asserted jury instruction error.

    Kansas Court of Appeals decisions released today.

  • 27 Jul 2018 11:17 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:  

    The first case is from the April 2018 special session at Colby High School in Colby: 

    Appeal No. 115,434: LCL v. Falen v. Rice County Abstract & Title Co.

    Archived oral argument video

    Third-party plaintiff (the Falens), successors in interest to the Mary Louise Falen-Olsen Trust, appealed Rice County District Court's decision to grant Rice County Abstract & Title Co.'s motion for summary judgment. The Falens had asserted claims of negligence and breach of fiduciary duty, but the district court judge concluded the statute of limitations had expired on the Falens' claims.

    The Falens' claims arose out of Rice County Abstract & Title Co.'s 2008 omission of a reserved mineral interest in a deed and its handling of a 2014 conveyance of the same property. The omission was not discovered until 2014.

    The district judge granted summary judgment after concluding the Falens suffered an injury in 2008 when the deed was recorded and the injury was reasonably ascertainable because recording the deed constituted constructive notice.

    On appeal, the Court of Appeals reversed the granting of summary judgment, and Rice County Abstract & Title Co. petitioned the Supreme Court for review. The court affirmed and held whether a substantial injury is reasonably ascertainable is a question of fact, not resolvable as a matter of law under the constructive notice statute. The filing and recording of a deed is only one piece of relevant evidence to be considered by the fact-finder in deciding whether a substantial injury caused by the deed's omission of a seller's reserved mineral interest is reasonably ascertainable.

    Appeal No. 106,741: State of Kansas v. Thomas Eugene Jenkins

    Archived oral argument video

    In a unanimous decision written by Justice Eric Rosen, the Supreme Court upheld Jenkins' convictions in Saline County District Court for first-degree murder, two counts of aggravated burglary, theft, three counts of criminal threat, two counts of domestic battery, and criminal restraint. The court held the evidence was sufficient to support the convictions; the district court had not abused its discretion when it found there had been no juror misconduct; and a retrospective competency hearing was feasible.

    Appeal No. 113,220: State of Kansas v. Hai That Ton

    Archived oral argument video

    In a unanimous decision written by Justice Eric Rosen, the Supreme Court affirmed the Court of Appeals decision affirming Ton's convictions in Johnson County District Court for possession of marijuana with intent to sell and failure to pay the Kansas drug stamp tax. Ton challenged the district court's denial of his motion to suppress evidence of a package mailed to him containing marijuana. Law enforcement officials removed the package from a shipping facility. The court concluded the law enforcement officials had reasonable suspicion to seize the package. The court declined to consider Ton's argument that officials held the package for an unreasonable length of time because, in his motion to suppress, Ton had affirmatively narrowed the scope of his argument to whether the officials had reasonable suspicion to seize the package. 

    Appeal No. 116,446: State of Kansas v. Charles Glover

    Archived oral argument video

    Glover was stopped for driving with a revoked license. The officer did not confirm Glover's identity before initiating the stop; rather, he assumed Glover was the driver because a records check of the vehicle's license plate indicated Glover was the registered owner and had a revoked driver's license. Douglas County District Court suppressed evidence from the stop because it was unreasonable to believe the registered owner was driving with a revoked license based solely on the observation the vehicle was being driven. The State appealed, and the Court of Appeals reversed the district court decision, ruling an officer may initiate a traffic stop if the officer knows the registered owner has a suspended license and is unaware of any facts suggesting the registered owner is not the driver. The Supreme Court reversed the Court of Appeals, rejecting the owner-is-the-driver presumption because it rests on a series of assumptions that are unreasonable without further evidentiary support. The court further explained that the presumption draws inferences in favor of the State based on a lack of evidence and impermissibly shifts the State's burden of proof to the defendant.

    Appeal No. 116,954: In the Matter of J.O.

    Archived oral argument video

    The Prairie Village Police Department violated a Kansas statute when it orchestrated two controlled drug buys in Shawnee, outside its territorial limits. J.O., the juvenile target of the buys, moved to suppress the evidence obtained in violation of state statute. The Supreme Court rejected J.O.'s argument because suppression of evidence is a deterrent measure, not a personal right. Its application is restricted to those situations that effectively advance its remedial purpose. Here, Johnson County District Judge Thomas Foster took other actions to deter future violations of the statute when he warned Prairie Village Police Department officers they acted as private citizens by engaging in the controlled buys outside their statutory authority and reminded them of their Fifth Amendment privilege against self-incrimination.

    Appeal No. 117,167: In the Matter of the Petition for a Writ of Habeas Corpus by Clay Snyder

    Archived oral argument video

    In an opinion written by Justice Caleb Stegall, the court unanimously denied Snyder's petition for habeas relief. In 2012, Saline County District Court found Snyder not competent to stand trial because of his intellectual disability. For the next few years, Snyder cycled through competency detainment and involuntary commitment. Most recently in November 2016, the district court found Snyder was still not competent to stand trial and ordered the State to initiate civil commitment proceedings against him Snyder petitioned for habeas relief, seeking release from confinement and dismissal of his criminal charges with prejudice based on federal speedy trial and due process violations. The court held delays attributable to Snyder's incompetency to stand trial did not infringe on his Sixth Amendment speedy trial rights. Furthermore, the court found no due process violation under Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), on the present showing. In a related case published the same day, In re Care & Treatment of Snyder, ___ Kan. ___, ___ P.3d ___ (2018) (No. 117,512, filed July 27, 2018), the court also upheld Snyder's most recent civil commitment. 

    Appeal No. 117,512: In the Matter of the Care and Treatment of Clay Robert Snyder

    Archived oral argument video

    In an opinion written by Justice Caleb Stegall, the court unanimously affirmed Pawnee County District Court's order to involuntarily commit Snyder under the Kansas Care and Treatment Act for Mentally Ill Persons, K.S.A. 59-2945 et seq. After Saline County District Court found Snyder not competent to stand trial, the Kansas Department for Aging and Disability Services initiated involuntary commitment proceedings against him. Pawnee County District Court held an evidentiary hearing, found Snyder was mentally ill and dangerous, and ordered him to be committed for care and treatment. Snyder appealed this order, alleging equal protection and due process violations and challenging the sufficiency of the evidence.

    The court held the Care and Treatment Act as applied via K.S.A. 2017 Supp. 22-3303 does not violate the Equal Protection Clause or Due Process Clause of the 14th Amendment to the U.S. Constitution and the evidence was sufficient to involuntarily commit Snyder. The court found a rational basis existed under K.S.A. 2017 Supp. 22-3303 to distinguish between Snyder and others who share his diagnosis based on his off-grid felony charge. The court also held the Due Process Clause does not obligate the State to release individuals from civil commitment who have been properly found to be mentally ill and dangerous simply because they cannot be successfully treated for their afflictions.

    Kansas Court of Appeals decisions released today.

  • 16 Jul 2018 3:51 PM | Tiffany Fisher (Administrator)
    The Kansas Supreme Court released the following published decisions:

    Appeal No. 115,483: State of Kansas v. Archie L. Robinson
     
    Archived oral argument video

    Robinson and his cousin Dustin Walker broke into a residence in Lawrence in 2014. One of the two cousins shot Patrick Roberts during the break in. A Douglas County jury convicted Robinson on charges of aggravated burglary and felony murder. Robinson appealed his conviction for felony murder, arguing there was insufficient evidence to support the conviction, the felony-murder jury instruction impermissibly broadened the information, and the instruction did not conform to the evidence presented at trial. The Supreme Court rejected Robinson's arguments and affirmed. The court noted it is irrelevant who shot the victim when the State charges felony murder in a case in which several individuals commit an inherently dangerous felony; all participants in the underlying felony are principals to felony murder when a death occurs during the commission of, attempt to commit, or flight from an inherently dangerous felony. Consequently, the State does not have to prove which participant committed the act resulting in a death. By operation of the felony-murder statute, a complaint or information stating a defendant killed a victim during the commission of an inherently dangerous felony does not necessarily charge that a defendant personally committed the act that resulted in a death. And a trial court does not err when it instructs a jury on the elements of felony murder by stating the defendant or another killed the victim even through the complaint or information stated the defendant killed the victim. Kansas law considers all who commit an inherently dangerous felony to be a killer if a death results during the commission, attempt to commit, or flight from an inherently dangerous felony.

    Appeal No. 116,174: State of Kansas v. Dustin D. Walker

    Archived oral argument video

    Walker and his cousin Archie L. Robinson broke into a residence in Lawrence in 2014. One of the two cousins shot Patrick Roberts during the break-in. Walker was charged with aggravated burglary and first-degree felony murder. A Douglas County jury convicted Walker of aggravated burglary, but it could not reach a verdict on the felony-murder charge. After a second jury trial resulted in a hung jury, but a third jury convicted Walker of felony murder. Walker appealed his convictions, arguing five claims of error. The Supreme Court rejected Walker's arguments and affirmed. The court found the district court erred by communicating with two jurors without Walker present and by shredding notes found in the jury room without first showing them to Walker or his attorney. But the court determined neither of these errors required reversal of the convictions, either on their own or cumulatively. The court rejected Walker's other claims of error. It held the district court did not err in admitting into evidence Walker's post-arrest interview with law enforcement and in instructing the jury.

    No. 118,663: In the Matter of L.J Buckner Jr.

    Archived oral argument video

    Buckner, of Lenexa, was disbarred from the practice of law in Kansas for violating the Kansas Rules of Professional Conduct and Kansas Supreme Court Rules on communication; fees; safekeeping property; terminating representation procedures; engaging in misconduct involving dishonesty, fraud, deceit, or misrepresentation; failure to respond to a lawful demand for information from a disciplinary authority; and failure to cooperate in a disciplinary investigation.

    No. 118,723: In the Matter of John Bernard Sullivan

    Archived oral argument video

    Sullivan, of Austin, Texas, was indefinitely suspended from the practice of law in Kansas for violating the Kansas Rules of Professional Conduct and Kansas Supreme Court Rules on competence; diligence; communication; accepting compensation for representing a client from one other than the client; declining and terminating representation procedures; commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer; engaging in conduct prejudicial to the administration of justice; failure to timely report felony charges to the Disciplinary Administrator; and failure to file a timely answer in a disciplinary proceeding. If Sullivan seeks reinstatement, he will be subject to a reinstatement hearing where he must meet certain conditions, as outlined in the published opinion.

    Appeal No. 115,435: State of Kansas v. Matthew D. Wilson

    Archived oral argument video

    In an opinion written by Justice Caleb Stegall, the Supreme Court unanimously affirmed the Riley County District Court's summary denial of Wilson's post-sentence plea withdrawal motion. One night, Wilson broke into an apartment and began shooting the occupants. During the ensuing panic, one occupant fired a defensive shot—meant for Wilson—that killed another occupant. Wilson later pled no contest to premeditated murder. On appeal, Wilson argued a factual basis did not support the plea because he did not shoot the victim. He also claimed his trial counsel was ineffective for failing to recognize this fact and advise him accordingly. Finally, Wilson requested a remand for an evidentiary hearing. The court held a factual basis supported the plea because Wilson proximately caused the victim's death. As an active shooter, Wilson created a deadly situation for the apartment's occupants, and the defensive shot was not an extraordinary event that broke the causal chain and became the sole cause of the victim's death. The court also determined a remand was unnecessary given the developed record and undisputed facts presented.

    Appeal No. 114,269: State of Kansas v. Seth Torres

    Archived oral argument video

    Torres was convicted in Lyon County District Court of distribution of methamphetamine and unlawful use of a communication device to facilitate a drug transaction. Torres appealed his convictions, arguing police illegally searched the vehicle he was riding in at the time of his arrest; therefore, evidence of the drug transaction should not have been admitted at trial. He also argued there was insufficient evidence to support his conviction for unlawful use of a communication device. The Supreme Court affirmed his convictions for both offenses. The court rejected his claim of an unlawful search because law enforcement officers had validly arrested Torres prior to the search and had a reasonable basis to believe evidence of the crime of might be found in the vehicle. The court also rejected his sufficiency of the evidence claim because the State presented sufficient evidence to prove all the elements of unlawful use of a communication device.

    Appeal No. 114,284: Stephen Douglas White v. State of Kansas

    Archived oral argument video

    White filed a late motion under K.S.A. 60-1507, asking the Butler County District Court to apply the manifest injustice exception to consider his late filing. The district court rejected White's manifest injustice argument. While White's appeal was pending, the legislature amended K.S.A. 60-1507 to change the factors courts consider in making a manifest injustice determination. The Supreme Court held the legislature's amendments to K.S.A 60-1507(f) found in L. 2016, ch. 58, § 2, do not apply retroactively to 60-1507 motions filed before July 1, 2016. For motions filed before July 1, 2016, the test set out in in State v. Vontress, 299 Kan. 607, 325 P.3d 1114 (2014), governs the analysis of whether the exception applies. Under the circumstances of this case, the district court's findings of fact and conclusion of law were insufficient for an appellate court to review the district court's determination that an untimely K.S.A. 60-1507 motion need not be extended by the court to prevent a manifest injustice. The Supreme Court remanded the case with direction.

    Appeal No. 116,981: State of Kansas v. Brandon Alvin Dannebohm

    Archived oral argument video

    In an opinion written by Justice Caleb Stegall, the Supreme Court unanimously reversed the Court of Appeal's determination that Dannebohm did not have standing to challenge the search of his friend's apartment in Barton County. The friend consented to a search of the apartment, and officers found 447.5 grams of methamphetamine in a safe belonging to Dannebohm. The State charged Dannebohm with possession with intent to distribute methamphetamine and no drug tax stamp, but the Barton County District Court suppressed the evidence. The State filed an interlocutory appeal, and the Court of Appeals reversed, holding Dannebohm did not have standing to challenge the search. The Supreme Court reversed, determining Dannebohm had standing because he could show a degree of acceptance into the household as well as a meaningful connection to the friend's apartment. The court further held Dannebohm's absence at the time of the search did not affect his standing. As a result, the Supreme Court remanded the case back to the Court of Appeals to consider the merits of the State's appeal.

    Kansas Court of Appeals decisions released.


  • 19 Jun 2018 2:21 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions: 

    Appeal No. 102,605: State of Kansas v. Justin Eugene Thurber 
     
    The Supreme Court upheld Thurber's capital murder and aggravated kidnapping convictions for the 2007 abduction and murder of a 19-year-old Cowley County Community College student. A jury convicted Thurber in 2009 and sentenced him to death.
     
    In affirming the convictions, the court postponed ruling on the jury's death sentence. The court explained that the district court must reconsider Thurber's claim that he is intellectually disabled using current legal standards. The court noted federal caselaw and state statute prohibit executing a person with an intellectual disability, and explained that the criteria for deciding intellectual disability claims in death penalty cases expanded since Thurber's trial. Adding to this "conundrum" about what law should apply, the court referred to a 2016 state statute revising the criteria and requiring that it apply retroactively.
     
    "We feel compelled to point out the problems we identify on the intellectual disability determination were not of the district court's making," wrote Justice Dan Biles for the court. "That court was operating under now outdated state statutes and federal caselaw."
     
    Biles said the court had no choice but to have the district court reconsider its intellectual disability ruling because new rules for conducting criminal prosecutions typically apply to cases pending on direct review, such as Thurber's. The court said it would retain jurisdiction over Thurber's death sentence appeal pending the outcome on remand.
     
    Today's 126-page opinion resolved Thurber's challenges to his convictions.
     
    Justice Eric Rosen dissented, arguing the changes in law applicable to Thurber's intellectual disability claim do not require a new district court ruling on the issue.
     
    Justice Lee A. Johnson also dissented. He argued there were several guilt-phase errors in addition to those found by the court's majority. He argued a new district court ruling on intellectual disability is unnecessary because the death penalty cannot be applied to Thurber under the Kansas Constitution Bill of Rights and due to the problems with the intellectual disability statutes. And he argued that, in making the new ruling, the district court should not be limited to determining whether Thurber was intellectually disabled at the time he first made the claim.

    Appeal No. 111,608: State of Kansas v. Vincent R. Jarmon
     
    A Sedgwick County jury convicted Jarmon of one count of burglary after he was found in a Wichita warehouse without permission to be there. Warehouse property was missing, and other warehouse property was found on his person. On appeal, the Court of Appeals affirmed the conviction but reversed on a peripheral question of the effectiveness of trial counsel. The Court of Appeals remanded the case to the Sedgwick County District Court for a hearing on possible conflicts of interest between Jarmon and his trial counsel The Supreme Court granted both Jarmon's and the State's petitions for review. Justice Eric Rosen, writing for a unanimous court, affirmed the Court of Appeals decision affirming the conviction but reversed the Court of Appeals order to remand. Jarmon argued that the trial court committed reversible error when it failed to include a definition of theft in the jury instructions for burglary. The court agreed that the omission was error, but it deemed the error harmless because the evidence was overwhelming and uncontested that Jarmon intended to permanently deprive the warehouse owners of their property. The court next relied on recent decisions to determine that the trial court conducted an adequate examination of the asserted conflict between Jarmon and his appointed counsel. Because Jarmon's motion for new trial based on ineffective assistance of counsel was filed out of time, it was properly considered a motion under K.S.A. 60-1507, but the Court of Appeals erroneously extended greater procedural protections than are ordinarily required for such motions. The remand was therefore reversed.

    Appeal No. 116,818: Sallie A. Scribner and Mark E. McNemee v. Board of Education of U.S.D. No. 492
     
    Before 2014 legislative amendments, Kansas elementary and secondary school teachers who had served a statutorily defined period of years were entitled to notice setting out the reasons for their termination or nonrenewal. These teachers also had a right to request a due process hearing. Legislative amendments in 2014 removed these protections for elementary and secondary school teachers. Scriber and McNemee's contracts were nonrenewed in May 2015 without the statutory protections both were entitled to before the 2014 amendments. The teachers challenged the 2014 amendments, arguing the amendments violated the teachers' constitutional right to due process and caused a breach of their contracts. The Supreme Court rejected the teachers' arguments, concluding the legislative process generally provides all the process that is due when the legislation results in the complete or partial deprivation of a protected property interests of more than a few individuals. The court also rejected the teachers' contract argument because it concluded the teachers could not assert rights under the pre-2014 statute.

    Appeal No. 118,758: In the Matter of Russell W. Davisson
     
    The Supreme Court ordered the disbarment of Wichita attorney Russell W. Davisson for three disciplinary complaints for lack of diligence in handling bankruptcy and probate proceedings. Davisson also failed to cooperate during the disciplinary investigation, did not appear at his hearing on the complaints, and did not appear before the court when it considered a disciplinary panel's recommendation for his disbarment. Davisson was admitted to practice law in Kansas in 1975. The court's disbarment order noted he was previously disciplined in 1987 and 1988 for neglecting legal matters entrusted to him, and was placed on two years' probation in 1998 for similar offenses.    

    Kansas Court of Appeals decisions released 


  • 08 Jun 2018 1:45 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    The first decision is from a case the Supreme Court heard during its April 9, 2018, special session at Colby High School.

    Appeal No. 112,573: State of Kansas v. Daniel Barlett
     
    The Supreme Court affirmed Barlett's conviction in Wyandotte County District Court of one count of criminal discharge of a firearm into a vehicle under a theory of aiding and abetting. Barlett earlier had pleaded guilty to voluntary manslaughter He sought a jury instruction of self-defense, which was denied under State v. Bell, 276 Kan. 785 (2003), and State v. Kirkpatrick, 286 Kan. 329 (2008), which held that a defendant charged with a forcible felony is barred from asserting self-defense. The Court of Appeals affirmed the conviction. Justice Eric Rosen, writing for a unanimous Supreme Court, held the Bell and Kirkpatrick rules were overly broad. The new rule is that a defendant may not assert self-defense if the defendant is already otherwise committing a forcible felony when he or she commits a separate act of violence, i.e., in purported self-defense. The court nevertheless found that, under the complex facts of the case, the instruction would have been factually inappropriate. Barlett also challenged the omission of a mere association instruction and an instruction defining intention. The court found no reversible error in these issues. Barlett finally asked the court to reverse his conviction because an equipment malfunction prevented the deliberating jurors from hearing part of a recording played during trial. The court held the district court adequately addressed the recording problem and Barlett suffered no prejudice from the equipment failure.

    Appeal No. 112,224: State of Kansas v. Gregory Mark George Jr.
     
    The Supreme Court reversed the decision of the lower courts to deny George's petition for DNA testing. George was convicted in Leavenworth County District Court of kidnapping, rape, aggravated robbery, and aggravated intimidation of a witness or victim. George petitioned to have several hairs that were found at the crime scene tested for DNA evidence. The Supreme Court holds that the hair may indeed produce exculpatory, noncumulative evidence and remands this case back to the district court to make that determination.

    Appeal No. 113,117: Jesse J. Atkins v. Webcon
     
    In a decision written by Justice Caleb Stegall, the Supreme Court affirmed the Workers Compensation Board's denial of benefits. A drunk driver's vehicle struck Atkins, who was working an out-of-town roofing job, while he was walking from a bar to his hotel room early one morning. The court unanimously held Atkins' injuries did not arise out of and in the course of his employment and the statutory going-and-coming exclusion did not apply because Atkins was neither on his way to assuming work duties nor leaving his work duties when he was injured.

    Appeal No. 113,746: State of Kansas v. Johnathan L. Riffe
     
    In a decision written by Justice Eric Rosen, the Supreme Court reversed the Court of Appeals and remanded the case to Reno County District Court for further proceedings. Riffe argued in district court that lifetime post-release supervision was unconstitutional as applied to him. The district court considered the three-factor test from State v. Freeman, 223 Kan. 362 (1978), before concluding lifetime post-release supervision was unconstitutional as applied to Riffe under section 9 of the Kansas Constitution Bill of Rights. The Court of Appeals disagreed and instructed the district court to impose lifetime post-release supervision. The Supreme Court held the district court erred by making insufficient factual findings on the first Freeman factor and refusing to consider the second and third Freeman factors. It remanded the case for consideration under the correct legal standard. Justice Lee Johnson concurred in part and dissented in part. He agreed with the majority's decision to remand for consideration of the second and third Freeman factors but disagreed with its determination the district court made insufficient findings on the first Freeman factor Justice Caleb Stegall concurred with the decision but wrote separately to observe the possibility the Freeman analysis has no basis in section 9 of the Kansas Constitution Bill of Rights.

    Appeal No. 115,160: State of Kansas v. Christopher Scott Futrell
     
    In a decision written by Justice Eric Rosen, the Supreme Court affirmed in part and reversed in part the decision of the Court of Appeals and remanded the case to Riley County District Court with directions. Futrell pleaded no contest to a residential burglary that took place February 20. The district court ordered him to pay restitution for damages caused by the burglary and for money stolen during that burglary. The court also ordered him to pay for damages he allegedly caused in a separate burglary and theft on January 31 and for damage to a cell phone in a separate case. The Court of Appeals affirmed the order except for the portion requiring Futrell to pay for damages in the January 31 crimes. The Supreme Court affirmed the decision in part but vacated the order that Futrell pay for the February 20 theft damages and remanded the case for a new restitution hearing. It instructed the district court to reconsider its calculation of restitution under the standard adopted in State v Arnett, __Kan.__, 413 P.3d 787 (Appeal No. 112, 572, filed March 23, 2018), that provides a defendant may only be ordered to pay restitution for damages that were proximately caused by the crime of conviction.

    Appeal No. 118,742: In the matter of Zane Todd Jr., respondent
     
    This disciplinary case arose out of a diversion terminated when Todd failed to complete one of 16 required hours of continuing legal education. Because Todd's serious illness and communications irregularities—for which the Disciplinary Administrator's office bore at least partial responsibility—mitigated his culpability for his lapses, the Supreme Court declined to impose a recommended public censure. It instead remanded the case to the disciplinary administrator for imposition of a less serious sanction: an informal admonition. 

    Kansas Court of Appeals decisions released today 

  • 04 Jun 2018 9:06 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 116,172: State of Kansas v. Phillip Parks

    The Supreme Court affirmed the Reno County District Court's decision to deny Parks' pro se motion to set aside a "void judgment." Parks argued before the district court that the pro se motion should be construed as a motion to withdraw his plea. Accordingly, the district court properly denied the motion for failure to show excusable neglect as required by statute when the motion is filed past the deadline. On appeal, Parks now argues that his pro se motion should have been construed as one under K.S.A. 60-1507 attacking his conviction. The Supreme Court holds that under the facts of this case, the invited error doctrine applies where Parks repeatedly invited the district court to construe his pro se motion as a motion to withdraw plea.

    Appeal No. 116,550: State of Kansas v. Kasey L. Nesbitt

    The Supreme Court affirmed Nesbitt's convictions in Sedgwick County District Court for felony murder, rape, and aggravated burglary. Nesbitt broke into the 100-year-old victim's home and sexually assaulted her. The victim survived for 21 days after the attack. At Nesbitt's trial, expert witnesses described the injuries the victim had sustained and the consequences to her health and mobility, ultimately leading to the blood clots that killed her. On appeal Nesbitt argued that the length of time and the chain of negative health consequences between the rape and the victim's death meant that the rape could not supply the legal basis for his conviction for felony murder. A unanimous court rejected Nesbitt's arguments and affirmed the judgment of the district court. There was sufficient evidence for a reasonable jury to conclude that Nesbitt's attack on the victim caused her death, making him guilty of felony murder

    Appeal No. 116,146:  State of Kansas v. Dyron M. King

    In a decision written by Justice Caleb Stegall, the Supreme Court unanimously upheld King's various convictions for attempted capital murder, aggravated robbery, aggravated battery, conspiracy to commit aggravated robbery, and criminal possession of a firearm in Wyandotte County. A jury found King took part in a string of violent robberies in Kansas City, Kansas, and Kansas City, Missouri, which concluded with the attempted execution of a police officer. King was jointly tried with Cecil Meggerson. The Supreme Court held there was sufficient evidence for jurors to find King was one of the robbers and to convict him of conspiracy to commit aggravated robbery The court also held the prosecutor committed nonprejudicial error by prefacing certain comments in closing arguments with the phrase "we know" to describe facts that were controverted. Lastly, the court determined that King waived his ability to seek severance of his trial from Meggerson's.

    Kansas Court of Appeals decisions released today


  • 11 May 2018 10:56 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today: 

    Appeal No. 115,309: In re the Adoption of T.M.M.H. 

    The Supreme Court rejected the appeal of a grandmother with shared legal custody of her grandson in this case from Johnson County District Court. The grandmother argued she should be allowed to fully participate in court proceedings related to a stepparent adoption of her grandson. In a divided decision, three members of the court concluded the grandmother failed to prove she had standing to participate and a fourth member concluded the grandmother did not have a legal right to participate. A minority of the court would have granted her the right.
     

    Kansas Court of Appeals decisions released today


  • 27 Apr 2018 9:49 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today: 

    Appeal No. 115,604State of Kansas v. Marcus G. Butler

    In a decision written by Justice Caleb Stegall, the Supreme Court unanimously affirmed Butler's convictions of first-degree felony murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery in Wyandotte County District Court.

    The Supreme Court held the Kansas conspiracy statute does not lay out alternative means for committing an overt act in furtherance of a conspiracy. It also held the district court properly instructed the jury that it had to find Butler committed the conspiracy knowingly rather than intentionally.
     
    The Supreme Court also held: Butler was not entitled to a new trial based on ineffective assistance of trial counsel; the district court committed harmless error by not providing the jury with a limiting instruction regarding Butler's prior drug purchases from a party involved in the case; the prosecutor under these circumstances did not err by referring to Butler's theory of the case as "ridiculous"; and cumulative error did not deprive Butler of a fair trial.
     
    Lastly, the Supreme Court concluded—and the State conceded—the district court erred when it imposed lifetime post-release supervision rather than parole. The Supreme Court affirmed Butler's convictions but vacated and remanded Butler's sentence so the district court can impose lifetime parole.

    Kansas Court of Appeals decisions released today 


  • 24 Apr 2018 12:44 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision: 

    Appeal No. 114,143: State of Kansas v. David S. Hanke
    The Supreme Court affirmed the Harvey County District Court's decision to deny Hanke's motion to suppress. Hanke was found asleep in a running van in a gas station parking lot around 2 a.m. The officer who checked on Hanke's wellbeing observed that Hanke was disoriented, had trouble focusing, and was slow to answer questions. This behavior, combined with the circumstances under which Hanke was found, led the officer to ask Hanke if he could search the van. Hanke consented, and the officer's search revealed methamphetamine, marijuana, and drug paraphernalia. The Supreme Court finds that the search of Hanke's van was supported by reasonable suspicion and affirms the convictions for possession of methamphetamine, marijuana, and drug paraphernalia.  

    Kansas Court of Appeals decisions released today 
  • 06 Apr 2018 10:44 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 108,625: State of Kansas v. Dana L. Chandler
    The Kansas Supreme Court reversed the premeditated first-degree murder convictions of Dana L. Chandler for the 2002 killings of her ex-husband and his fiancée. The court held the prosecutor in the case falsely told the jury Chandler had violated a nonexistent protection from abuse order in her divorce case. The unanimous court said Chandler's prosecutor used this false claim as a judicial endorsement for its theory that Chandler was dangerous.
     
    "Taken as a whole," wrote Justice Dan Biles on the court's behalf, "this prosecution unfortunately illustrates how a desire to win can eclipse the State's responsibility to safeguard the fundamental constitutional right to a fair trial owed to any defendant facing criminal prosecution in a Kansas courtroom."
     
    A Shawnee County District Court jury convicted Chandler in 2012 of killing Mike Sisco and Karen Harkness on July 7, 2002. They were found dead in Karen's Topeka home. Both were shot at least five times. They were in bed as the shooting began. Their murders launched a nine-year criminal investigation that culminated in Chandler's arrest in 2011. The case now returns to the district court.
     
    In its opinion, the court noted the State's case relied on limited circumstantial evidence consisting of Chandler's inconsistent statements concerning her whereabouts when the murders occurred, her gas purchases at that time, her obsessive behavior toward Sisco and Harkness, and two post-arrest jailhouse phone calls the State argued were incriminating. There was no physical evidence linking Chandler, who lived in Denver at the time of the killings, to the crime.
     
    During the trial, the prosecutor claimed there was a protection from abuse order issued by the Douglas County District Court in Chandler's divorce proceedings requiring Chandler to stay away from Sisco and that Chandler violated that order. The court observed, "All agree there is no protection from abuse order in the trial record." The opinion then laid out multiple efforts by the State to claim on appeal the order existed until it more recently acknowledged the prosecutor was wrong.
     
    "But that concession," Biles wrote, "while laudable, was a long time coming—even though we would expect the State never to shield something so obviously indefensible."
     
    Chandler's appeal was first argued to the court on January 27, 2016. After that, the court granted Chandler's unopposed motion for new counsel and additional briefing. New counsel was appointed and additional briefing permitted. "We took these unusual steps because the circumstances indicated they were necessary to serve the ends of justice," the court said.

    Appeal No. 114,890: Pamela Heimerman v. Zachary Rose and Payless Concrete Products
    The Supreme Court affirmed a Court of Appeals decision upholding the Allen County District Court's dismissal of Pamela Heimerman's wrongful death suit stemming from the death of her husband Daniel Heimerman in a car accident. Pamela had filed suit against Zachary Rose, who was driving the other vehicle in the accident, and Payless Concrete Products, Rose's employer.
     
    Because Daniel was killed while acting within the course and scope of his employment, Pamela received workers compensation death benefits. By operation of law, Daniel's employer received subrogation rights and a statutory lien on any recovery by Pamela that was duplicative of the death benefits. Pamela filed a wrongful death suit in Allen County and joined a wrongful death suit filed in federal court by Daniel's son, Lucas. Both suits were based on Kansas' wrongful death statute. Pamela and Lucas eventually settled their wrongful death claims, and the federal court approved the settlement and its apportionment between Pamela and Lucas.
     
    After the federal case concluded, Pamela moved the Allen County court to rule that her share of the federal settlement was attributable to her damages for loss of consortium and loss of spousal services. Such losses are statutorily exempt from an employer's subrogation rights and statutory lien.
     
    The Supreme Court held that Pamela could not seek categorization in state court of the damages recovered in the federal lawsuit because doing so would violate the one-action rule. Kansas law makes it clear that only one cause of action may be maintained based on the wrongful death of one person. For the claims stemming from the death of Daniel, that singular cause of action became the federal case once the federal court entered a judgment approving the parties' settlement agreement.

    Appeal No. 118,527: In the Matter of Linda S. Trigg, Respondent 
    Trigg, former district magistrate judge in the 10th Judicial District, was found in violation of Canons 1 and 2 of the Kansas Code of Judicial Conduct governing compliance with the law; promoting confidence in the judiciary; impartiality and fairness; competence, diligence, and fairness; decorum, demeanor, and communication with jurors; and cooperation with disciplinary authorities.

    Appeal No. 112,638: State of Kansas v. Henry Sullivan
    The Supreme Court affirmed the Court of Appeals decision affirming Sullivan's Wyandotte County convictions for multiple counts of rape and aggravated criminal sodomy and one count of aggravated robbery. The court held no reversible error when, during its deliberations, the jury had access to an admitted exhibit that was not published in open court. The court also held that the use of Sullivan's prior convictions to enhance his sentence did not violate Sullivan's right to a jury trial. 

    Kansas Court of Appeals decisions released today 


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