Archive for June, 2009

Decision: State v. Sharp

June 26, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Sharp (No. 98,389). In a 6-1 decision, written by Justice Lawton Nuss, the Court rejected Kimberly Sharp’s contention that her confession to assisting in the murder of David Owen was coerced. Consequently her felony murder and kidnapping convictions were affirmed. Justice Lee Johnson dissented, arguing that certain statements of of the interviewing officer rose to the level at which a reward was implied in return for them, thus rendering the statement coerced.

The background to this case is the murder of David Owen in Topeka in 2006. The circumstances in that case are described in the write-up of State v. Baker (No. 98, 498). Baker and a man named Charles Hollingsworth hanged Owen. Sharp was tried for felony murder and kidnapping because she had assisted in detaining Owen and had provided the rope with which he was later murdered. In addition, she had burned some of his belongings afterwards.

The core of her appeal revolved around the fact that during a police interview the interviewing officer had said, when asked if Sharp was going to jail:

“No, no, no, no, no, no, no, no. You are [only] a witness to this thing as long as you do not do something dumb and jam yourself.”

and later,

“Just don’t tell me no if I ask you something.”

Sharp argued that this constituted a promise not to prosecute her for the murder and that she was then convicted because of evidence she gave up after these statements were made, which implicated her in providing the rope, telling her associates not to murder Owen “here” (as opposed to not at all) as well as her involvement in covering up the crime.

In addition, Sharp has two young children. When it emerged that the children were in another homeless camp, the detectives pressed Sharp for more information, promising to reunite her with them (which they did). Sharp argued that the statements she made at this point were therefore made in order to get to see her children.

The Kansas Supreme Court rejected both arguments. It found that the motivation of the officers surrounding the children was to speedily rescue them from where they were left (in the presence of a convicted sex offender no less) and that this was not an attempt t coerce information out of Sharp. It also found that the statements during the interview were not prejudicial – the police admitted that at the time they did not expect Sharp to be charged with murder. However, promises of immunity (even if these statements rose to that level, which the court found they did not), are not absolute. The Court noted that immunity has been rescinded in circumstances where it is discovered that the person offered immunity for testimony turns out to be the actual killer. Since Sharp’s statements directly implicated her in Felony Murder (and she had been Mirandized and had waived counsel) her convictions were sound. The Court examined the context of the second remark and found it to be a caution not to lie, rather than a demand that Sharp assent to whatever the police officer suggested.

Justice Johnson dissented. He would have found the statements prejudicial. He argued that the first statement of the detective constituted a promise which in conjunction with the admonition not to say ‘no’ deprived the statement of its nature as a product of Sharp’s free and independent will. He was also concerned with the matter of locating Sharp’s children. He argued that given a parent’s natural concern for their children the statements of police surrounding this issue would have been coersive or inducive upon Sharp’s testimony.

Advertisements

Decision: State v. Phillips

June 26, 2009

June 19th. The Kansas Supreme Court has issued its decision in the consolidated cases of State v. Phillips (No. 96,754) and State v. Wenzel (No. 97,548). In a unanimous opinion, written by Justice Marla Luckert, the Court held that Court Docketing Fees and Bureau of Indigent Services (BIDS) costs which can be assessed against criminal defendents in the event of a guilty verdict, do not form part of the judgement and therefore do not have to be read in open court.

The cases concerned Robert Phillips and Alan Wenzel who were convicted and had these costs imposed against them, but without the judge referring to them at sentencing. Both men appealed to the Court of Appeals and the Court of Appeals (separately) ruled that the fees were not punitive and therefore not covered by the requirement that a judgement is void if it is not pronounced in the presence of the defendant. The BIDS fee is assessed based on the ability of the defendant to pay as determined at the time the defendant applies for a public defender. In Wenzel’s case the Court record did not reflect whether the judge at that time had made a determination whether to waive the fee or not. Therefore that part of that case was remanded to the District Court for fact-finding.

The Kansas Supreme Court upheld both Court of Appeals decisions, arriving at the same result. In addition it noted that this distinction of fees from punitive measures is also supported by a Statute which explicitly allows the Court to issue notice of them to defendants via a statement. However, the Court did urge Judges to announce these fees along with sentences anyway.

Decision: State v. Dixon

June 25, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Dixon (No. 97,020). In a unanimous opinion, written by Justice Carol Beier, the Court affirmed Wallace Dixon’s felony murder conviction for the deaths of Dana Hudson and her 19-month old son Gabriel in a fire caused by Dixon’s ransacking of an Emporia apartment. Note: Justices Davis (now Chief Justice), Luckert and Nuss did not take part in the case. Their places were taken by Judges Richard Greene, Stephen Hill and Steve Leben.

In 2001, after quarelling with Dixon, Dixon’s girlfriend moved into an apartment. Dixon later (on a day he knew the apartment to be empty) broke in and removed several items of property. He later returned (both times with accomplices) and vandalized the apartment, in the process knocking a gas stove. Subsequently there was an explosion in the building and Dana and Gabriel Hudson who lived in another apartment were killed by fire and smoke inhalation since they could not escape. Dixon was convicted. The Kansas Supreme Court in a 6-1 decision vacated the conviction due to errors at the trial and Dixon was tried again. Again he was convicted, and brought this appeal against his convictions.

Dixon made many arguments, all of which were rejected by the Court, specifically:

  • Dixon wanted a mistrial because a prosecution expert witness changed his testimony since the first trial and the defense was not informed – Rejected, as the changes in testimony were to the details and did not alter the position of the ATF which was that the stove was damaged in the robbery and that this caused the fire.
  • Dixon wanted a mistrial because a juror saw Dixon in shackles in the hallway – Rejected, as he was not in Court in visible shackles (which the United States Supreme Court has held violates Due Process) and the trial judge cautioned the jury against inferring anything from the incident.
  • Dixon wanted instructions on lesser included offenses of manslaughter – Rejected because Kansas Law has different rules for lesser included offenses of Felony Murder and these instructions cannot just be requested by the defense.
  • Dixon argued that the judge should have instructed the jury that they all had to agree upon which predicate felony he had committed in order to support the Felony Murder conviction – Rejected, as this was not required in an alternative means case. The jury needed only to unanimously find that a particular felony was committed leading to the murder conviction, rather they each had to find that he had committed a felony, thus making the deaths felony murder.
  • Dixon argued that the jury instructions misstated the law – Rejected, as they did not.
  • Dixon argued that evidence that his mother had sought to pay off victims of the burglary in order for them not to go to the police should not have been admitted – Rejected as this evidence was well within the discretion of the Trial Judge to allow as probative and that it was not *unduly* (emphasis in the original opinion) prejudicial.
  • Cumulative error – Rejected, as there were no errors, so there was no cumulative error.

Dixon’s convictions for two counts of Felony Murder were therefore affirmed.

Decision: State v. Boyer

June 25, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Boyer (No. 98,763), a sentencing appeal. In a unanimous opinion, written by Justice Eric Rosen, the Court held that juvenile adjudications do not count for the purposes of determining whether a criminal is classified as a persistent sex offender. As a result it vacated the sentence imposed on James Boyer and remanded for a new sentencing hearing.

Boyer committed sexually violent crimes, both as a juvenile and as an adult. Neither the Kansas Supreme Court nor the Kansas Court of Appeals’ deigns to tell us what the old offense was or what his newer, adult offense was. The District Court certified Boyer as a persistent sex offender since he had now committed two separate crimes, and thus his sentence was doubled from the presumed 55-month sentence to 110-months.

Boyer appealed, and the Court of Appeals agreed that juvenile adjudications did not count for the purposes of the persistent sex offender statute. Supporting this conclusion the Court of Appeals noted that the Kansas Sentencing Guidelines do include some juvenile adjudications in calculating criminal history scores and not others, while the persistent sex offender statute makes no mention of them. The Kansas Supreme Court affirmed the Court of Appeals decision, agreeing with this and noting that the Legislature has made a distinction between the way juvenile adjudications and criminal convictions are handled, and that if it wanted juvenile adjudications to count for this statute it could say so.

Therefore Boyer’s sentence was vacated and he will be resentenced without the persistent sex offender classification.

Decision: State v. Richardson

June 25, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Richardson (Nos. 100,445 and 100,835). In a unanimous opinion, written by Justice Lee Johnson the Court reversed Robert William Richardson’s convictions on two counts of engaging in sexual intercourse to expose another to a life threatening disease.

Richardson is infected with HIV, and has been undergoing treatment for over a decade for the virus. In October 2005 he had sex with two women (referred to as M.K. and E.Z.) without any form of protection. Kansas Law criminalizes the act of intentionally exposing another to a life threatening disease while knowingly infected. Richardson was convicted in a Bench Trial and sentenced to two consecutive sentences.

The Kansas Supreme Court reversed his conviction. It found that the crime as written by the legislature is a crime of specific intent, i.e. one where the State bears the burden of proving that Richardson by his actions intended to expose the women to HIV. The Court based its ruling on the plain text of the statute which reads:

“To engage in sexual intercourse or sodomy with another individual with the intent to
expose that individual to that life threatening communicable disease.”

The Court rejected the State’s argument that by virtue of being HIV-positive any sexual act on Richardson’s part would meat this intent test. The Court also rejected the State’s argument that it would be too hard for the prosecution to prove this form of intent, noting that many crimes involve the prosecution weighing in on a defendants state of mind. The Court observed that circumstantial evidence could be used for doing this and that at the preliminary hearing in this case there had been evidence mentioned which could have proven this point. The Court describes the failure to use this evidence at trial “inexplicable”, since it would potentially have been enough to affirm Richardson’s conviction.

Decision: Frick v. City of Salina

June 11, 2009

June 5th. The Kansas Supreme Court has issued its opinion in Frick v. City of Salina (No. 99,791) a case concerning relocation benefits to businesses following a taking under eminent domain. In a nearly unanimous decision, written by Justice Marla Luckert, the Court held that Ben and Lavelle Frick were entitled to a new review in District Court of the record of the administrative proceeding that had awarded them a certain amount of benefits. The District Court had previously held that its review would only be based on whether the administrative procedure’s decisions could be upheld as a matter of law. Justice Johnson concurred in the result, but criticized the Court for not holding that the new trial would simply be a completely new review, with the Fricks able to bring new witnesses and introduce new evidence. No Justices dissented from the decision. Note: Former Chief Justice Kay McFarland and Justice Lawton Nuss took no part in the decision. Their places were filled by Judge Stephen Hill of the Court of Appeals and Senior Judge Edward Larson.

The background to the case was a public works project involving the City of Salina and KDOT with the City as the principal on the project. In order to complete the project it was necessary to take some retail property from the Fricks. There was a separate eminent domain dispute concerning the compensation for this which has been mutually settled. Under the terms of Kansas Law (in turn implementing a Federal requirement) in cases such as this, businesses which are forced to relocate are required to receive compensations for relocation costs. These costs were assessed by an independent examiner who awarded some money to the Fricks. The Fricks sought to appeal to the District Court where the statute governing such decisions stated they were entitled to trial de novo of the issue. The Court held that it was able to review the record of the examiner but not make new findings, and upheld the awards as supported in law.

The Kansas Supreme Court reversed the District Court and ordered a new hearing. In reaching that decision, it made two principal rulings. The first was that the terms of the Kansas Act for Judicial Review and the Civil Enforcement of Agency Actions and related Federal acts did not apply to this case, since the City of Salina was taking the title to the property and municipalities are excluded from that act. As a result, the rules laid down there governing administrative appeals did not apply.

The second decision made by the Court held that since the function of the examiner in this case was a largely judicial one (weighing claims and deciding upon damages) the District Court could perform a new trial without offending the separation of powers doctrine. However, because a record would have already been created and the statute framed the new trial as an appeal the new trial would only be based on evidence submitted to the examiner and would not allow the Fricks to bring new witnesses or information. The District Court had therefore erred in using too strict a standard and the case was remanded there to be reconsidered with the District Court forming new fact findings and interpretations of the evidence collected by the examiner.

Justice Lee Johnson issued a forceful concurrence. He felt that the Court was creating ambiguity by not construing de novo to plainly mean a new trial, with all the attributes (witnesses, evidence etc) one would expect of one. He accepted that where there could be separation of powers issues involved (e.g. the Legislature ordering a Judical body to carry out an Executive duty) the Court could not follow the words of the statute, but since in this scenario this was not the case he thought that the Legislature should be able to specify where a new trial was required and where an appeal process was required. His concurrence cites Justice Luckert’s decision in State v. Marsh for support. [Note: State v. Marsh was a capital case in which the Kansas Supreme Court’s ultimate decision striking down the death penalty was overturned by the United States Supreme Court. However the reasoning Johnson cites was not part of the decision that the U.S. Supreme Court took issue with, and therefore remains valid].

Decision: Rural Water District #2, Miami County v. City of Louisburg

June 5, 2009

May 29th. The Kansas Supreme Court has issued its decision in Rural Water District #2 of Miami County v. City of Louisburg (No.100,332), a property annexation dispute. In a unanimous opinion, written by Justice Carol Beier, the Court held that the statute governing compensation to Rural Water Districts following annexations by cities requires a de novo review in the District Court should the Water District contest the result of the appraisal process. Note: Judge Edward Bouker served on the Court for this case, due to the vacancy created by the retirement of Chief Justice Kay McFarland.

Rural Water District #2, Miami County (a quasi-municipal corporation) operates water utilities for much of Miami County outside of the city of Louisburg. Louisburg has annexed several pieces of property and as a result utility responsibility passes from the water district to the city, along with ownership of facilities serving the annexed areas. The Water District initiated this action to get compensation as a result of this.

The statutory procedure invoked in this (rare) situation is that when an agreement is not reached between the City and the Water District, a team of appraisers is appointed (one by the City, one by the Water District, and one by the first two appraisers, though in this instance the third was appointed by the District Court). The appraisers identify the value of the property transferred and thus recommend the compensation. If dissatisfied, the Water District can “institute an action” in the District Court. This case turns upon two major issues – whether the valuation should include going concern value, and whether the Water District was entitled to a de novo trial of the valuation in the District Court versus an appeal analogous to a challenge to an administrative agency decision. The District Court had created a procedural framework for the case which did not allow for a de novo valuation at trial, but which comprehensively directed the appraisers’ method for performing it. The District Court ultimately awarded approximately $133,000. The City had argued for $60,000 and the Water District for at least $8m. The Water District appealed.

The Water District prevailed upon both its arguments. After examining the legislative history of the statute in question the Kansas Supreme Court held that going concern value can indeed be considered in these type of appraisals. However, it found that this decision did not benefit the Water District since the Judge had already directed the appraisers to do so. The actual import the appraisers assigned to this component is left to them under the very loose wording of the statute which provides no formula for evaluation.

Turning to the trial process, in some places in the statutes the Legislature has used the wording ‘de novo’, in others it has not, but not all of those where it has not used ‘de novo’ follow a review on appeal procedure. The Court ruled that the statute does require a de novo trial of the facts, which had not happened in this case. The Court was evidently dissatisfied at this result, with Justice Beier casting the decision as one where the legislative intent was hard to ascertain, other statutes using the same terminology were not analogous, and inviting the Legislature to overrule the decision if it wished to do so. She also noted that there was practically no guiding caselaw from other states on this obscure scenario. Caselaw on eminent domain was not much use since the statutory framework is quite different.

The Court therefore reversed the District Court and remanded for a new trial. All sides agree that the onus is upon the Water District to disprove the appraisal’s reasonableness. However, the Court made it clear that the standard the Water District must meet is a preponderance of the evidence standard.

Decision: Williams v. Lawton

June 5, 2009

May 29th. The Kansas Supreme Court has issued its opinion in Williams v. Lawton (No. 97,132), an interlocutory appeal from the order of a new trial in a medical malpractice case. In a unanimous decision, written by Justice Marla Luckert, the Court held that under the facts of this case the interlocutory appeal was acceptable, that the District Court did not err in awarding a new trial after information surfaced of jury misconduct and that the prosecution was justified in using its expert witness despite his being retired at the time of the underlying incident taking place.

The case stems from an adult circumcision which Dr Steve Lawton performed on Richard Williams. After complications, Williams sued alleging malpractice. Williams introduced expert witness testimony in support of his case from Dr Philip Diggdon. Lawton objected to Diggdon’s testimony on the grounds that Diggdon was retired at the time of the incident and that Kansas law governing expert witnesses in medical malpractice cases states that “no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident…is devoted to actual clinical practice”. The District Court rejected this argument and allowed Diggdon to testify. The jury returned a verdict, finding the majority of the culpability lay with Lawton and awarding a total of $1.9m in damages.

After the case, Lawton’s counsel interviewed some jurors and discovered a claim that the jury had disregarded their instructions and agreed to award an average of the dollar amounts that each individual thought was right. If true, this would be an impermissible quotient verdict. Lawton brought this to the attention of the Court and the District Judge took testimony from other jurors, and made a determination that a quotient verdict had been delivered, and therefore ordered a new trial. He also certified his rulings for an interlocutory appeal to the Court of Appeals. The Court of Appeals took the questions and reversed the District Court finding fault in the way the Judge had interacted with the Jurors. Lawton then appealed to the Supreme Court.

Before the Supreme Court there were three main issues (though there is a lot of detail in the opinion regarding the procedural posture of the case, which is relevant to anyone examining Kansas Law on interlocutory appeals).

1. Was the interlocutory appeal appropriate and should the Court of Appeals have taken it?

The Court held that it was not an abuse of discretion for the interlocutory appeal to be certified or for the Court of Appeals to rule on it. While discouraged the appeal in this instance promoted judicial economy since it might prevent the need for a new trial. The Court also held that it was appropriate to consider all the questions which had come up in the appeal since they were heavily interconnected with the underlying issue of whether a new trial was needed.

2. Did the District Judge err in his questioning of the jurors?

After dispensing with a procedural argument that the District Court could not by itself recall the jurors to investigate the misconduct claim (since the Defence Counsel moved an oral motion to do this anyway after the judge suggested it), the Court held that the Judge’s questions were allowed. In this it reversed the Court of Appeals which had held that the Judge’s questions of the jurors had extended into the impermissible area of the jury’s thought processes. The key finding in the case was that the jurors had agreed to be bound by an average of their suggested damages. This was not permitted and was not a matter of their mental processes but simply an agreement within the jury room and thus constituted sufficient misconduct for the Judge to order a new trial.

3. Was Dr Diggdon’s testimony permitted?

The Court held that Dr Diggdon’s testimony was allowed. The key to whether an expert witness qualified under the statute was whether in the two-year period prior to the incident 50% of their time had been devoted to clinical practice. Lawton had argued that the ratio had to hold all the way up to the time of the incident, rather than be an average over the preceding two years. The Court held that the Statute was clear that Lawton’s contention was wrong here.

As a result, the case will proceed to a new trial under basically the same conditions as the first.