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  • 09 Dec 2019 10:23 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    The first two decisions are for cases argued before the Supreme Court at its October 7 special session at El Dorado High School.

    Appeal No. 118,448: State of Kansas v. Howard R. Pruitt

    Archived oral argument video

    The Supreme Court affirmed Pruitt's conviction for first-degree premeditated murder of Phillip Little by a jury in Butler County District Court. Pruitt killed Little with a shotgun after lying in wait for Little outside a mobile home. Trial evidence showed bad blood had developed between Pruitt and Little before the shooting. A mutual acquaintance who was aware of the ongoing feud and that Pruitt was interested in harming or paying someone to harm Little called Pruitt on the night of the shooting to let him know Little's location. On appeal, Pruitt raised multiple challenges. The court held the prosecutor's statement during closing argument—"This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point"—was an impermissible personal opinion but the error did not require reversal of Pruitt's conviction. The court assumed, without deciding, the district judge's failure to instruct sua sponte on reckless second-degree murder and reckless involuntary manslaughter was error. Based on the overwhelming evidence, however, the error did not warrant reversal.

    Appeal No. 119,278: GFTLenexa LLC v. City of Lenexa

    Archived oral argument video

    GFTLenexa LLC leased property that was reduced in size when the City of Lenexa condemned part of it to widen a street. GFTLenexa lost some rental income from a sublessee because the property size was reduced. GFTLenexa sued the city to recover its lost rental income, asserting a claim of inverse condemnation. The district court ruled in favor of the city. GFTLenexa appealed, arguing in part the district court wrongly found the property lease prohibited suing the city. Justice Eric Rosen, writing for a unanimous Supreme Court, held the undivided fee rule precluded compelling the city to pay a second time for land already condemned in an eminent domain proceeding. A party cannot create contractual liability for a third party that was not a participant in a contract between two other parties. Of procedural significance is the holding that inverse condemnation appeals are properly initiated in the Court of Appeals, not the Supreme Court.

    Appeal No. 115,247: State of Kansas v. Virgil Patrick Fox

    Summary calendar; no oral argument

    The Supreme Court affirmed the district court's denial of Fox's motion to withdraw his 1982 guilty pleas for aiding and abetting two felony murders in Cherokee County. Fox filed his motion to withdraw his pleas over 30 years after he entered them and over three years after the Legislature imposed a one-year statute of limitation for filing such a motion. The Supreme Court agreed with the district court that Fox did not establish any facts that would constitute excusable neglect to permit his untimely filing.

    Appeal No. 115,227: State of Kansas v. Jeremy Claerhout

    Archived oral argument video

    Claerhout was drinking with friends and became highly intoxicated Driving at a speed far in excess of the legal limit, he hit the rear of another car, propelling it forward nearly 300 yards through a tree, utility pole, and fence. The driver of that car died shortly afterward. A Johnson County jury convicted Claerhout of second-degree murder, involuntary manslaughter, and reckless driving. The Court of Appeals affirmed the convictions, and the Supreme Court granted review. Justice Eric Rosen, writing for a unanimous Supreme Court, affirmed both the Court of Appeals and the district court. The court held the district court did not err when it allowed the State to present evidence Claerhout had previously entered into a diversion agreement for intoxicated driving. The court also upheld the admission of a police officer's analysis of crash data obtained from measuring devices in both Claerhout's and the victim's cars. Finally, the court held Claerhout was not entitled to assert a voluntary intoxication defense against the second-degree murder charge. The court disagreed with Claerhout's theory that the evidence of his intoxication tended to show he could not attain a reckless state of mind because of his impaired mental function.

    Appeal No. 115,713: State of Kansas v. Daniel S. Carpenter

    Summary calendar; no oral argument

    The Court affirms the Court of Appeals and the Sedgwick County District Court. Carpenter was placed on probation, with an underlying sentence of 55 months in prison followed by lifetime postrelease supervision. Carpenter disputed the lifetime postrelease supervision, arguing the statute was ambiguous and he could also receive 36 months' postrelease supervision and should have received the lesser sentence. The Supreme Court rejected Carpenter's argument that persons sent to prison are treated differently under the statute than persons placed on probation. The court reiterated its statement from earlier in 2019 that the statute does not contain an ambiguity and clearly provides that all persons convicted of a sexually violent crime on or after July 1, 2006 (such as Carpenter) will have lifetime postrelease supervision included in their sentence.

    Case No. 121,064: In the Matter of Joan M. Hawkins

    Archived oral argument video

    Hawkins, of Lawrence, was disbarred from the practice of law for violation of the Kansas Rules of Professional Conduct governing diligence, safekeeping property, termination of representation, failure to respond to disciplinary authority, failure to cooperate in disciplinary investigation, failure to file answer in disciplinary proceeding, and failure to file motion to withdraw upon suspension.

    Case No. 121,208: In the Matter of Andrew M. Delaney

    Archived oral argument video

    At the time of the hearing in this attorney discipline case, Delaney, a Hiawatha attorney, was under ongoing probation from a previous disciplinary action. The hearing panel found, and the Supreme Court agreed, that Delaney failed in the present case to provide competent representation and failed to avoid conflicts of interest in representing clients in two separate proceedings. The court agreed with the hearing panel's recommended discipline and suspended Delaney's license to practice for one year, but stayed the imposition of that sanction and extended his probation for an additional two years.

    CCR Case No. 1318: In the Matter of April C. Shepard

    Archived oral argument video

    Shepard was publicly reprimanded for violation of the rules adopted by the State Board of Examiners of Court Reporters governing the failure to maintain impartiality toward each participant in all aspects of reported proceedings or other court-related matters.

    Kansas Court of Appeals decisions released today
  • 27 Nov 2019 3:39 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 113,228: State of Kansas v. Daquantrius S. Johnson

    Archived oral argument video

    Johnson was convicted in Sedgwick County for criminal possession of a firearm, aggravated assault, and felony criminal discharge of a firearm. The Court of Appeals reversed Johnson's convictions and remanded for a new trial, holding the trial judge "nodding off" on the first day of trial was structural error. The panel also held the district court did not have to obtain a limited jury trial waiver before accepting Johnson's stipulation to an element of the possession charge.

    In a unanimous opinion written by Justice Caleb Stegall, the Supreme Court reversed both of the Court of Appeals' holdings. The court explained an isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal. The court also held when a defendant stipulates to an element of a crime, the defendant has effectively waived the right to a jury determination of that element. Thus, a valid jury trial waiver—limited to the stipulated element or elements—is required. The Supreme Court remanded Johnson's case to the Court of Appeals to consider the rest of Johnson's issues raised on appeal.

    Appeal No. 118,848: State of Kansas v. Timothy C. Bryant

    Summary calendar; no oral argument

    Bryant sought a Supreme Court review of a Wyandotte County District Court judge's denial of his motion to correct an illegal sentence. In August 2006 a jury convicted Bryant of first-degree murder and aggravated robbery. The Supreme Court upheld these convictions on direct appeal in 2008. In his motion to correct an illegal sentence, Bryant tried to use changes to the law made after he was sentenced to argue his sentence was illegal. He also argued his sentence was unconstitutional. The court rejected these arguments. The court held the legality of a sentence is controlled by the law in effect at the time the sentence is imposed. The court further held a motion to correct an illegal sentence is an inappropriate vehicle to challenge the constitutionality of a sentence.

    Kansas Court of Appeals decisions released today

  • 04 Nov 2019 10:16 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 115,441: State of Kansas v. Ken'Dum Dan'Sha Owens

    Archived oral argument video 

    The Supreme Court affirmed Owens' Sedgwick County convictions for aggravated robbery, criminal use of a weapon, and criminal deprivation of property. The court held Owens did not establish that a 19-month delay between his arrest and trial violated his constitutional speedy trial rights. Although the length of the delay was presumptively prejudicial given that this was not a complex case, the reasons for the delay and lack of prejudice to Owens countered the presumption of prejudice. And while Owens objected to the delay, his objections were partially withdrawn, and overall he failed to show his constitutional speedy trial rights were violated.

    Appeal No. 116,692: Via Christi Hospitals Wichita Inc. v. Kan-Pak LLC, et al.

    Archived oral argument video

    The Supreme Court affirmed the decision of the Workers Compensation Appeals Board and reversed the Court of Appeals decision. The appeal arose from a fee dispute between a hospital that treated an injured worker and a workers compensation insurance carrier. The workers compensation regulation governing reimbursement to hospitals—the 2011 schedule of maximum fees—said the hospital would be paid "whichever is least" between either 70% of billed charges or the Medicare Severity-Diagnosis Related Group amount. Testimony at a fee dispute hearing showed that the phrase "whichever is least" was added to the regulation by mistake. The hearing officer held he did not have authority to strike the erroneous language, and the Workers Compensation Appeals Board affirmed. The Court of Appeals reversed, holding the board's decision was unreasonable, arbitrary, and capricious. The Supreme Court held the statute giving the board authority to resolve fee disputes between hospitals and insurers—the specific statute under which the hospital sought more money—does not give the board authority to correct mistakes in workers compensation regulations. As a result, the court affirmed the board's decision in favor of the carrier.

    Kansas Court of Appeals decisions released today
  • 25 Oct 2019 12:52 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 115,387: State of Kansas v. Timothy C. Boettger

    Archived oral argument video 

    Boettger appealed his Douglas County conviction and sentence for one count of reckless criminal threat. The Court of Appeals affirmed, finding no reversible error. The Supreme Court reversed, holding the reckless form of criminal threat is unconstitutionally overbroad in violation of the free speech clause of the First Amendment to the U.S Constitution. The Supreme Court dismissed Boettger's remaining arguments as moot. 

    Appeal No. 116,307: Corvias Military Living LLC and Corvias Military Construction LLC v. Ventamatic Ltd. and Jakel Inc.

    Archived oral argument video 

    In an opinion written by Justice Caleb Stegall, the Supreme Court reversed in part and affirmed in part the Court of Appeals as right for the wrong reason and remanded to Geary County District Court for further proceedings. Corvias built thousands of homes near Fort Riley in Geary County. In these homes, Corvias installed bathroom ceiling fans constructed by Ventamatic Ltd. and Jakel Motors Inc. After installation, several of the ceiling fans caught fire. Corvias sought recovery for the fire damage as well as the removal and replacement costs of the remaining fans. The Supreme Court held the Kansas Product Liability Act, K.S.A. 60-3301 et seq., did not bar Corvias from recovering damages associated with the fire damage to the homes because the Act permits a plaintiff to recover for "damage to property"—even damage to the product itself. Additionally, while the court held removal and replacement costs are not recoverable in a product liability action, the Act does not create an absolute bar against their recovery.

    Appeal No. 116,453: State of Kansas v Ryan R. Johnson 

    Summary calendar; no oral argument

    Johnson appealed his Montgomery County conviction and sentence for one count of criminal threat. The Court of Appeals affirmed, finding no error. The Supreme Court reversed, holding there was sufficient evidence to support Johnson's conviction as either a reckless or intentional criminal threat. But the Supreme Court held the reckless form of criminal threat is unconstitutionally overbroad in violation of the free speech clause of the First Amendment to the U.S. Constitution. The Supreme Court reversed Johnson's conviction and sentence because Johnson had been charged with either reckless or intentional criminal threat, the jury had been instructed on both, and the record on appeal did not establish whether the jury found Johnson acted recklessly or intentionally. A majority of the Supreme Court held Johnson should be granted a new jury trial solely under the intentional threat provision of Kansas' criminal threat statute. Justice Caleb Stegall, joined by Justice Dan Biles, agreed the reckless form of criminal threat is unconstitutional, but they would affirm the conviction because the evidence established Johnson acted intentionally, not recklessly.

    Appeal No. 116,568: State of Kansas v. Marquel D. Dean 

    Archived oral argument video

    On direct appeal, the Supreme Court affirmed Dean's Sedgwick County convictions for premeditated murder, four aggravated battery charges, and criminal possession of a firearm. In an opinion written by Justice Caleb Stegall, the court held Dean failed to sufficiently furnish the record with a juror's notebook Dean claimed prejudiced his trial rights after the juror impermissibly brought the notebook from home. Because Dean failed to affirmatively designate the record with the document, the court affirmed the district court's denial of Dean's motion for mistrial. Additionally, Dean argued the district court erred when it failed to provide a "cooperating witness" jury instruction. The court held a district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is, nonetheless, testifying in exchange for benefits from the State. Similarly, the Supreme Court affirmed the district court's denial of Dean's new trial motion because Dean failed to provide allegedly new documents detailing the witness' federal plea deal. Moreover, the witness testified he hoped to receive a reduced sentence for his testimony. The Supreme Court also held the State presented sufficient evidence of premeditation and evidence of Dean's gang affiliation was admissible. Finding no error, the Supreme Court held the cumulative error doctrine did not apply.

    Kansas Court of Appeals decisions released today


  • 14 Oct 2019 11:39 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision October 11:

    Appeal No. 116,883: JoeAnn Williams, et al. v. C-U-Out Bail Bonds LLC, et al.

    Summary calendar; no oral argument 

    Williams and others present in her home sued C-U-Out Bail Bonds LLC and the City of Overland Park after agents of C-U-Out forced their way into Williams' private home looking for an individual they were seeking. The plaintiffs' suit against Overland Park, in particular, was based on allegations police officers who responded to Williams' 911 call had a duty to investigate and intervene once they arrived on the scene and spoke to C-U-Out's agents but not Williams. A Johnson County District Court judge dismissed Overland Park as a defendant, ruling the plaintiffs failed to state a valid cause of action. On appeal, a Court of Appeals panel affirmed the dismissal. On review, the Supreme Court reversed the Court of Appeals decision and reversed the district court's dismissal of Overland Park as a defendant. The court concluded the plaintiffs' petition in district court alleged sufficient facts to support potential intentional illegal conduct on the part of the bail bondsmen, a police undertaking of a duty to investigate owed to the plaintiffs individually, and no immunity for Overland Park under the Kansas Tort Claims Act.

    Kansas Court of Appeals decisions released 

  • 14 Oct 2019 11:17 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision October 4:

    Appeal No. 112,449: State of Kansas v. Dustin Dean Perkins

    Archived oral argument video

    The Supreme Court affirmed Perkins' conviction in Ellis County District Court for driving under the influence. The court found that although the breathalyzer test results were the product of a nonconsensual and unconstitutional search following the court's holdings in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016), and State v. Nece, 303 Kan. 888, 367 P3d 1260 (2016), the officer's good-faith belief that the statute, as it existed at the time of the arrest, that authorized the search was constitutional permitted the State to use the test results to convict the motorist.

    Kansas Court of Appeals decisions released.

  • 27 Sep 2019 11:02 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 120,875: In the Matter of Kevin P. Shepherd

    Archived oral argument video

    Shepherd, of Topeka, was suspended from the practice of law for two years for violating the Kansas Rules of Professional Conduct on competence; diligence; communication; safekeeping property; preserving client funds; withdrawing from representation; making a false statement in connection with a disciplinary matter; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct prejudicial to the administration of justice

    Appeal No. 120,924: In the Matter of Joshua T. Mathews

    Archived oral argument video 

    The Supreme Court today ordered Mathews, of Leawood, who was admitted to practice law in Kansas in April 2008, be censured and that the censure be published in the Kansas Reports. The court agreed with a recommendation from a panel of the Kansas Board of Discipline of Attorneys and the Disciplinary Administrator's Office that Mathews should be disciplined for misconduct in reporting his continuing legal education credits information to the Kansas Continuing Legal Education Commission in 2017. The court found he engaged in misconduct including dishonesty by falsely denying to the commission he had viewed online CLE courses while attending an in-person CLE program, and inaccurately stating on an affidavit that he completed one hour of ethics credit.

    Kansas Court of Appeals decisions released today

  • 20 Sep 2019 11:49 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today: 

    Appeal No. 116,371: State of Kansas v. Stephen A. Gentry

    Archived oral argument video

    In a decision written by Justice Eric Rosen, the Supreme Court affirmed Gentry's convictions in Saline County District Court for first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. The court held a statutory error in failing to offer lesser included offense instructions on the two forms of reckless homicide was harmless. It also held there was no statutory error in failing to instruct the jury on lesser included offenses of voluntary manslaughter, attempted unintentional but reckless second-degree murder, attempted reckless involuntary manslaughter, and attempted voluntary manslaughter. The court affirmed the district court's denial of Gentry's motion for a continuance. Finally, the court held the district court erred when it ordered Gentry to pay restitution to the Saline County Attorney's Office for expenses related to witnesses and trial exhibits. It vacated that portion of the order.

    Kansas Court of Appeals decisions released today


  • 10 Sep 2019 1:28 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 114,403: Sage Hill v. State of Kansas

    Archived oral argument video

    The Supreme Court expanded the scope of employment retaliation claims in the state by ruling that an employee can sue an employer for job transfers and other actions that could dissuade a reasonable person from exercising rights under the Kansas Civil Service Act. The ruling reversed a Court of Appeals decision that said employment retaliation claims should be limited to firings and demotions. The decision came in a case brought by Kansas Highway Patrol Trooper Sage Hill, who alleges the Patrol retaliated by requiring him to move across the state to keep his job after the Kansas Civil Service Board ordered the agency to reinstate him to work after he was fired.

    "We hold the common-law tort of retaliation may be premised on an employer's action short of dismissal or demotion, such as the involuntary job relocation alleged in this case," wrote Justice Dan Biles for the court majority. "To hold otherwise would undermine the purposes supporting common-law job retaliation claims and the important public policy expressed in the Kansas Civil Service Act."

    Justices Caleb Stegall and Marla Luckert dissented, arguing the Patrol was immune from the claim regardless of its merits. The case now returns to Shawnee County District Court for further proceedings.

    Appeal No. 118,239: Northern Natural Gas Co. v. ONEOK Field Services Co., LLC, et al

    Archived oral argument video

    In a 5-2 decision, the Supreme Court ruled in favor of Northern Natural Gas Company in a decade-long dispute over the right to produce Northern's natural gas that migrated from Northern's underground storage facilities to property owned by others. The court's ruling addressed gas produced after June 2, 2010, when Northern received permission from the Federal Energy Commission to expand its storage area. In an opinion written by Justice Dan Biles, the court majority held that once the new boundaries were certified, landowners could no longer continue producing and selling the migrated gas from wells within the new boundaries. The case now returns to Pratt County District Court for further proceedings.

    Justices Lee Johnson and Caleb Stegall dissented, arguing the migrated gas belonged to the landowners until Northern could legally condemn the storage rights and pay the landowners for those rights. The controversy has been in litigation since 2008 in both state and federal courts.

    Appeal No. 114,589: State of Kansas v. Giosbel Perez-Medina

    Archived oral argument video

    The Supreme Court affirmed a Court of Appeals decision affirming Perez-Medina's aggravated battery conviction by a jury in Ford County District Court. During a party at Perez-Medina's Dodge City home, Perez-Medina grabbed Ivan Valcarcel-Arias from behind and cut Valcarcel-Arias' cheek with a knife. After conviction, Perez-Medina received a 41-month prison sentence and 36 months of postrelease supervision. He was also ordered to register as a violent offender under the Kansas Offender Registration Act.

    On appeal to the Court of Appeals, Perez-Medina raised multiple issues. The court concluded that none of the issues warranted reversal of his conviction or sentence. Perez-Medina petitioned the Supreme Court to review the decision, and the court granted the request.

    Perez-Medina argued that the district court should have instructed the jury on the lesser crime of reckless aggravated battery, in addition to the charged crime. For purposes of the appeal, the court assumed that it was error to not instruct on the lesser crime but concluded that any error was harmless. Based on the evidence presented at trial, the jury did not have a competing narrative of reckless action to allow it to reach the conclusion that Perez-Medina had acted recklessly. An equally divided court also affirmed Perez-Medina's registration requirement.

    Appeal No. 115,628: In re Estate of Roxie A. Moore, deceased

    Archived oral argument video

    In the presence of witnesses, a woman asked her former daughter-in-law to sign, on the woman's behalf, a transfer-on-death deed assigning real property to the former daughter-in-law. The woman died, and her son challenged the validity of the transfer-on-death deed. The Cowley County District Court upheld the deed's validity, and the Court of Appeals affirmed.

    The Supreme Court granted review, and Justice Eric Rosen, writing for the Supreme Court majority, affirmed the lower courts. The majority examined the common-law doctrine of amanuensis, which applies to an individual who puts in writing what another person has dictated.  When an amanuensis writes a signature for a person in the presence of that person and at that person's direction, the signature becomes the signature of the person for whom it is made. The majority held that the doctrine operated to give the transfer-on-death deed legal effect. The Supreme Court majority held that a party may prove, through the testimony of witnesses or other competent evidence, a mistake made by a notary when acknowledging the execution of a deed. The court explained the burdens of proof required in such cases to protect against fraud and self-enrichment.

    Justice Caleb Stegall wrote a concurring opinion agreeing with the application of amanuensis law to this case and the principal holdings, but criticizing the majority's interpretation of the law of agency as it might be applied in other cases. Justice Lee Johnson dissented, arguing that the Kansas statutory scheme does not allow an amanuensis to sign transfer-on-death deeds. He cautioned against the opportunity for fraudulent transfers under the majority's holdings.

    Appeal No. 118,914: In re Care and Treatment of Robert J. Sigler

    Archived oral argument video

    The Supreme Court affirmed the jury verdict finding Sigler was a sexually violent predator subject to civil commitment under the Kansas Sexually Violent Predator Act. This was the State's second attempt to civilly commit Sigler. The first attempt failed after the Barton County District Court found the State failed to meet its burden to show beyond a reasonable doubt that Sigler was likely to act out on his mental abnormality or personality disorder or that he had serious difficulty controlling his behavior. Sigler was released to parole in July 2015. The State filed a new petition to civilly commit Sigler after Sigler's parole was revoked. Sigler asked the district court to rule the second proceeding was procedurally barred. The district court disagreed, holding a second proceeding was allowed based on a material change in Sigler's mental abnormality or personality disorder or in his ability to control his behavior. The Supreme Court agreed. Sigler also argued his civil commitment should be reversed because the district court did not declare a mistrial of its own accord when a State witness testified incorrectly that Sigler had been civilly committed in an earlier proceeding that was overturned on appeal. The Supreme Court disagreed that this incorrect testimony required the district court to declare a mistrial.

    Appeal No. 116,252: State of Kansas v. Terry R. Ballou Sr.

    Archived oral argument video

    Ballou appealed his convictions and sentence in Miami County District Court for rape and aggravated indecent liberties with a child. The Court of Appeals affirmed his convictions and sentence, finding no reversible error. The Supreme Court affirmed, holding that although the State erroneously misstated facts in its closing argument, the error was not reversible. The Supreme Court rejected Ballou's challenge to the admission of a video recording of a forensic interview of the child victim, holding it was not expert testimony and Ballou had not shown the interviewer used unreliable methods. The Supreme Court also held Ballou failed to preserve his pretrial objection to the admission of prior acts of sexual misconduct because he did not renew his objection when the evidence was introduced at trial. Additionally, the Supreme Court held Ballou failed to show he was entitled to an independent psychological evaluation of the victim, and further rejected Ballou's claim that cumulative error denied him a fair trial.   

    Appeal No. 116,524: State of Kansas v. Dashaun Ray Howling

    Archived oral argument video

    The Supreme Court affirmed Howling's convictions for one count of aggravated criminal sodomy. The court rejected Howling's argument that a videotaped interview of the victim was inadmissible expert testimony. The court noted other jurisdictions have adopted pretrial procedures to address defense arguments that evidence obtained through the forensic interview process is unreliable or otherwise inadmissible. The court did not need to decide in this case whether to adopt such a procedure because the Pratt County District Court concluded the statements resulting from the interview were sufficiently reliable to be admissible, which is the ultimate goal of such pretrial proceedings. The court also rejected Howling's sufficiency of the evidence challenge, finding sufficient evidence supported a rational factfinder finding Howling guilty beyond a reasonable doubt.

    Appeal No. 114,944: State of Kansas v. Larry Laverne Toothman

    Archived oral argument video

    Toothman was convicted in Saline County for committing seven sex crimes against his teenaged niece. The Court of Appeals reversed one conviction for rape and one for aggravated criminal sodomy and remanded the case with directions to resentence Toothman for aggravated incest, a less severe offense, in their place. The Court of Appeals believed Toothman should be sentenced for aggravated incest because it was a more specific crime than rape or aggravated criminal sodomy, due to his familial relationship with the victim.

    In a unanimous opinion written by Justice Caleb Stegall, the Supreme Court held the Court of Appeals erred when it reversed Toothman's convictions for rape and aggravated criminal sodomy. The Supreme Court explained that aggravated incest criminalized "otherwise lawful sexual intercourse or sodomy" with a specified relative, but aggravated criminal sodomy and rape could never be "otherwise lawful." Thus, the Supreme Court held that aggravated incest is not a more specific crime than aggravated criminal sodomy or rape and affirmed Toothman's seven convictions.

    Appeal No. 116,505: State of Kansas v. Christopher Boothby

    Archived oral argument video

    Boothby was convicted of aggravated assault and criminal threat in Stevens County. On appeal, Boothby argued that the district court judge committed judicial misconduct when he commented during voir dire about a former case in which Boothby was charged with aggravated battery. The parties agreed that the district judge committed misconduct but disputed whether the error was harmless. Boothby also argued that the jury instruction, "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions," was erroneous because it told the jury that it could not nullify.

    In a unanimous opinion written by Justice Caleb Stegall, the Supreme Court held the district court judge's erroneous comment was harmless beyond a reasonable doubt. The court announced a new rubric for reviewing erroneous judicial comments made in front of the jury that are not jury instructions or legal rulings, calling it "judicial comment error." The court explained that, from now on, judicial comment error will be analyzed in two steps: error and prejudice. If a judicial comment error is found, the State must prove beyond a reasonable doubt that the error did not affect the outcome of trial in light of the entire record. The court also held that the instruction telling the jury to base the verdict "entirely upon the evidence admitted and the law as given in these instructions" was legally correct and did not prevent the jury from exercising its power of nullification.

    Kansas Court of Appeals decisions released today

  • 23 Aug 2019 12:32 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 114,971: David A. Noyce v. State of Kansas

    Summary calendar; no oral argument  

    The Supreme Court affirmed Sedgwick County District Court's summary denial of Noyce's request for habeas corpus relief in his case involving convictions for capital murder, premeditated first-degree murder, and aggravated arson. Noyce's convictions stemmed from his 1999 guilty plea to setting fire to a residence and killing his wife and 2-year-old son. Noyce filed his habeas corpus motion alleging ineffective assistance of trial counsel years after the Legislature's one-year deadline to file such claims. The court held Noyce failed to establish the deadline should be extended to prevent an obviously unfair result. The court reasoned Noyce's counsel negotiated a plea to avoid the death penalty, Noyce had not filed a motion to withdraw his plea but instead asked the district court to vacate his convictions with prejudice, and the legal argument Noyce relied on to reverse his first-degree premeditated murder conviction was not precedential until years after Noyce pleaded guilty. 

    Appeal No. 115,259: State of Kansas v. Dewayne V. Hambright

    Archived oral argument video 

    The Supreme Court vacated the probation portion of Hambright's sentence and remanded for resentencing because Sedgwick County District Court did not follow the Supreme Court's mandatory case law, which required the sentencing court to provide substantial and compelling reasons to increase the statutorily recommended term of probation.

    Appeal No. 115,602: State of Kansas v. Samuel Chavez

    Archived oral argument video

    The Supreme Court affirmed Chavez' stalking and criminal threat convictions in Wyandotte County District Court, rejecting his challenge to the sufficiency of the evidence supporting the stalking conviction. The court also held Chavez was not entitled to a jury instruction on the victim's implied waiver of a protection from abuse order because a protected person cannot unilaterally modify or extinguish a court order.

    Appeal No. 115,904: Kedrin D. Littlejohn v. State of Kansas

    Archived oral argument video

    In a K.S.A. 60-1507 action, the Supreme Court reaffirmed the requirement a movant must show exceptional circumstances that justify filing a second or a successive 60-1507 motion to avoid having the motion dismissed as an abuse of remedy. Littlejohn argued his trial counsel was ineffective for failing to pursue a defense of mental disease or defect during Littlejohn's jury trial for his role in a 2008 murder, but Sedgwick County District Court dismissed Littlejohn's 60-1507 motion as successive because Littlejohn already had unsuccessfully sought 60-1507 relief in a previous motion. The Court of Appeals reversed and remanded for an evidentiary hearing to determine whether Littlejohn's claims had any merit. The Supreme Court disagreed, finding the appropriate standard was whether Littlejohn demonstrated exceptional circumstances existed, which would excuse his failing to raise his claims during his previous 60-1507 motion. The court remanded to the Court of Appeals to apply the exceptional circumstances standard.

    Appeal No. 116,469: Warren Meats v. Kansas Department of Revenue

    Archived oral argument video 

    In a Johnson County case arising from the administrative suspension of a driver's license following a motorist's arrest for DUI, the Supreme Court held a $50 fee imposed as a precondition to being granted administrative review of the suspension, without any provision for indigency, was an unconstitutional violation of procedural due process rights. However, as Meats did not appeal the district court's ruling that the issue was moot as applied to him, he was not entitled to any relief. The court upheld the suspension of the motorist's license, finding the implied consent advisories used were legally sufficient to advise of legal consequences and the motorist received sufficient personal service of the notice of his license suspension.

    Appeal No 117,035: Michael S. Creecy v. Kansas Department of Revenue

    Archived oral argument video

    In a Johnson County case arising from the administrative suspension of a driver's license following a motorist's arrest for DUI, the Supreme Court held a $50 fee imposed as a precondition to being granted administrative review of the suspension, without any provision for indigency, was an unconstitutional violation of procedural due process rights. The court ordered the $50 fee be refunded but upheld the suspension of the motorist's license, finding the motorist received personal service of the notice of license suspension as required by statute, the motorist failed to prove his inability to complete the breath test was caused by a medical condition, and the implied consent advisories sufficiently advised the motorist of the potential legal consequences of failing or refusing to complete a post-arrest breath test. 

    Appeal No. 117,862: Brenda Rosendahl v. Kansas Department of Revenue

    Archived oral argument video 

    In this Miami County case, the Supreme Court reinstated the Kansas Department of Revenue's administrative suspension of Rosendahl's driving privileges. Rosendahl argued her license should not be suspended because the law enforcement officer did not have reasonable grounds to request an evidentiary breath test based on her post-driving alcohol consumption. The court rejected this argument because the officer did not maintain a posture of willful ignorance regarding Rosendahl's post-driving alcohol consumption; instead, the circumstances known to the officer when he requested the breath test did not indicate Rosendahl had consumed alcohol after driving.

    Kansas Court of Appeals decisions released today.
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