Decision: Polson v. Farmers Insurance Co.

January 30th. The Kansas Supreme Court has issued its opinion in Polson and Fallis v. Farmers Insurance Company (No. 99,908), a case covering insurance benefits of deceased persons and their estates. In a unanimous opinion, written by Justice Luckert, the Court affirmed a summary judgment issued by the District Court in favor of the insurance company. The Court determined that the provisions of the Kansas Uniform Simultaneous Death Act (KUSDA) do not override those of the Kansas Automobile Injury Reparations Act (KAIRA), and that in any case if they did they could not be construed to allow the estates of two people who died simultaneously to receive the survivors benefits from an insurance policyeach person would have received had they lived.

Timothy and Michelle Polson, married but with no children, were killed in a car accident. There is no evidence to suggest either of them survived the other: both were pronounced dead at the scene. Their car insurance policy contained a clause as mandated under the KAIRA that survivors benefits be paid to a spouse or children in the event of death. Michelle and Timothy’s parents (John Polson, Pauline Fallis) each applied to Farmers Insurance Company for the $10,800 in survivors benefits. Farmers refused the claim on the grounds that neither parent was part of the qualified survivor classes (spouse or child). Polson and Fallis sued, seeking summary judgment and attorney’s fees, arguing that each of their children would have been entitled to the other’s survivor benefits and that the benefit should be incorporated into their estates. Farmers’ sought and received summary judgment against this. Polson and Fallis appealed. Their core legal theory is that because the KUSDA states that where death order cannot be ascertained each individual is held to have predeceased the other, each in turn for the purposes of survivors benefits should be seen as surviving the other.

In affirming the District Court the Kansas Supreme Court makes several rulings of note. First, it holds that the KUSDA as a statute of general application does not overrule the language in the subject-specific KAIRA which states that to claim survivors benefits the claimant must establish that they survived. Secondly it holds that in a case like this the automatic presumption under the KUSDA of each person predeceasing the other does not create an equivalent assumption of survival in situations where survival is the factor in the law. Thirdly, the Court rules that in any case survivors benefits on an insurance policy do not match any of the categories of property that the KUSDA is narrowly defined to apply to, since they are non-transferable.

The Court also rejected Polson and Fallis’ application for attorney fees which are required under Kansas law when an insurance company loses a case, since in this one Farmers prevailed.

Decision: State v. Thomas

January 30th. The Kansas Supreme Court has issued its opinion in State v. Thomas (No. 99,711). In a unanimous decision written by Justice Luckert the Court affirmed the life sentence pronounced on James Thomas of Sedgwick County for the repeated touching and fondling of his 5 year old grandaughter. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

Thomas had pleaded no contest to two charges of aggravated indecent liberties with a child, but admitted to committing the acts on at least 150 occasions. He pled no contest to spare his victim the trial. For this reason and others (including his eligibility for treatment) he sought and his victim’s family agreed to a sentence of probation. The two counts he was charged with fell in time on either side of a change in the law that imposed a mandatory life sentence with eligibility for parole after 25 years. As a consequence he made a motion for a downward departure from the sentencing guidelines where based on mitigating circumstances a judge can disregard the ‘mandatory minimum sentence’. Thomas argued that since he was 59 years old the standard sentence amounted to life without parole. He also cited a lack of criminal history and eligibiluity for sex offender treatment. In his motion he suggested that the sentence would be a cruel and unusual punishment, but crucially he never made that argument before the District Court. Judge Anthony Powell considered the motion, but rejected it and based on Thomas’ admission of repeating the crimes over 150 times ruled that in this case justice was served by the mandatory minimum of 25 to life.

In his appeal Thomas argues that his sentence represents a cruel and unusual punishment under the United States Constitution and the Kansas Bill of Rights. He also argues as a back up that the District Court abused its discretion in not granting him a downward departure in his sentence. The Court rejected the first argument since it was not raised in the District Court. Arguments may not be raised for the first time on appeal. There are some narrow exceptions to that rule, but as with the recent decision in State v. Ortega-Cadelan the Court declined to invoke them.

The second part of Thomas’ appeal was also rejected. The Court rejected Thomas’ argument that each of the example mitigating factors in the statute was a sufficient compelling reason to depart from the sentencing guidelines and reviewed the Court’s sentence under an abuse of discretion standard. Since that legal test to  is that no reasonable person could agree with the Trial Judge’s decision, the Court affirmed his sentence.

Thomas will be eligible for parole if and when he is 84.

Decision: State v. Davis

January 30th. The Kansas Supreme Court has issued its decision in State v. Davis (No. 99,665), a motion to correct an illegal sentence. In a brief, unanimous, opinion, written by Justice Davis the Court rejected Mitchell Davis’s argument that the enactment of the Kansas Sentencing Guidelines in 1993 changed his parole date eligibility for crimes he committed in 1992. Note: Robert Davis is now the Chief Justice of the Kansas Supreme Court. This case was argued when former Chief Justice, Kay McFarland was still a member of the Court. McFarland herself was recused from the case. Her place was taken by Judge Christel Marquardt of the Court of Appeals.

Mitchell Davis was convicted in 1992 of a variety of crimes, up to and including attempted first-degree murder. He was sentenced to forty years to life imprisonment, with eligibility for parole after 20 years. In 1993, Kansas enacted the Kansas Sentencing Guidelines Act. Under this regime, Davis would have received a lighter sentence. Davis contended that his parole eligibility must be recalculated based on this amendment to the law. The Court dismissed this argument entirely, noting that the relevant part of the Kansas Sentencing Guidelines Act by its own language only applies to felony cases for crimes committed on or after July 1, 1993. Davis’ crimes were committed before that, and therefore his parole eligibility is governed by the law in place at the time of his conviction.

Decision: State v. Vaughn

January 30th. The Kansas Supreme Court has issued its opinion in State v. Vaughn (No. 98,840) concerning the statutory right to a speedy trial. In a unanimous opinion, authored by Justice Davis, the Court vacates a District Court ruling, dismissing charges against Merle Vaughn on speedy trial grounds and orders the District Court to hold a further hearing to clarify whether the defendant acquiesced in the delays that led to his trial being held up for 269 days. Note: Robert Davis is now the Chief Justice of the Kansas Supreme Court. This case was argued when former Chief Justice, Kay McFarland was still a member of the Court.

Merle Vaughn was charged with three accusations of misconduct relating to his role as Chief of Police in Edwardsville. Various Wyandotte County judges recused themselves from the case. Eventually Senior Judge William Lyle agreed to preside over the case. The Defense sought one continuance and received it. Subsequently a number of continuances were given due to ill health on the part of Judge Lyle and a potential conflict of interest between Lyle and Vaughn’s defense counsel. When the case came to the point of hearing its first argument on a pre-trial motion to dismiss, the 180 day statutory speedy trial period had been exceeded. Judge Lyle therefore dismissed the case noting that it was not enough to show that the defendant had acquiesced in the delays and therefore lost his right to a speedy trial.

The Kansas Supreme Court corrects Judge Lyle on this point. In fact, if a defendant is shown to acquiesce to the delay then they do waive their right and that continuance is tolled against the 180 day limit (the clock stops until the continuance is over). However, in Kansas acquiescence cannot be completely passive, so there must be positive proof that Vaughn agreed to the continuance. When the delays are broken down most of them cannot be tolled to the defendant. However, following one of them the defense counsel wrote to the prosecution stating the Judge’s decision to delay the proceedings. If this letter constitutes acquiescence then 16 days remain of the trial period. If this act was (as the defense argues) merely acting as a conduit for passing on the Judge’s ruling this period would not toll, and the speedy trial period would be held to have elapsed.

The Court was unable to make this determination based on the record before it. Since it involves what was said between the defense and Judge Lyle, and since Judge Lyle previously did not take acquiescence into account in his ruling the Supreme Court remanded the case to him to determine whether Vaughn acquiesced to that particular delay, and proceed with the case accordingly.

As an aside, the Court rejected an argument by the State that it hold that a judge’s illness should toll the speedy trial period. The State had argued that 10 out of 15 cited jurisdictions work this way. The Court holds that however those jurisdictions do it, the text of the Kansas Statute does not allow for a judge’s illness to delay a trial beyond the 180 day period, since the defense is not culpable for it.

Decision: State v. Trotter

January 30th. The Kansas Supreme Court has issued its opinion in State v. Trotter (No. 98,563) a collateral attack on Christopher Trotter’s capital murder and first-degree murder convictions for the killings of Traylennea Huff and James Wallace. In a unanimous decision authored by Justice Luckert, the Court vacated Trotter’s first-degree murder conviction as multiplicitous with the capital murder conviction. (I.e. the conviction was for the same crime), but also affirmed the District Court’s summary denial of the rest of Trotter’s habeas claim (concerning witnesses changing their testimony). Trotter was sentenced to fifty years without parole for the capital murder conviction, a sentence unaffected by the removal of the first degree murder conviction.

Trotter, Kevin Eddington, Michael Navarre and Virdal Nash planned and executed a botched home invasion robbery of Huff and Wallace’s home (Nash left before the robbery began). Trotter’s comrades testified that he was the mastermind behind the plan and that when Wallace fought with Trotter and removed a shirt from his head that he had been using to mask his identity, Trotter had shot him. They further testified that they had encountered Huff upstairs in the house, and that after they left (and Trotter went in) they heard him shoot her. Huff and Wallace’s 8-year old son Damante survived the incident and testified that he heard his father say ‘Chris’, saw Trotter in the house and heard the shootings. At trial he identified Trotter as the killer. Trotter was convicted and lost his direct appeal on various grounds, though the jury did not choose the death penalty. The capital murder conviction was for the premeditated intentional killing of two or more people. The first degree murder conviction was for the killing of Wallace.

He filed a habeas motion attacking his sentence on two grounds: the first was that his sentence for first degree murder was multiplicitous with the capital murder conviction. The Court agreed that it was: the capital murder conviction was for killing two or more people, one of whom was Wallace. All the components of the first degree murder conviction were therefore related to the same crime as the capital murder conviction, and first degree murder is a lesser included offence of capital murder. Under Double Jeopardy, Trotter could not be convicted of both charges. Trotter however had to pass a procedural barrier first, since he had not raised this issue on direct appeal. Such issues may not be raised in habeas actions without exceptional justifying circumstances. In this case Trotter argued (and the Court agreed) that he had ineffective assistance from the Kansas Appellate Defenders Office, since they were aware of the Court’s previous ruling that these two crimes were multiplicitous at the time his original appeal was filed, but omitted the claim. Trotter’s first degree murder conviction was therefore vacated. [Since his sentences for both crimes were concurrent anyway, and the capital murder sentence was higher the impact of this is on paper only].

Attached to Trotter’s habeas petition were two affidavits. One signed by Eddington, and one by Nash which purport to refute their trial testimony about Trotter’s masterminding the crime. The District Court dismissed this motion on the grounds that it was vague (Trotter had not filled out all the paperwork as required), but the Kansas Supreme Court overlooks that, ruling that the affidavits being attached should have been considered. It then does this and affirms the dismissal of the motion. It finds that even if the affidavits are accepted as true, all they do is refute the suggestion that Trotter was behind the robbery: something that is irrelevant to his conviction for the two murders, since the State did not need to prove that he was the mastermind behind the robbery to secure his conviction.

Decision: State v. Hoffman

January 30th. The Kansas Supreme Court has issued its opinion in State v. Hoffman (No. 98,394). In an opinion joined by 7 others Justice Rosen affirmed Eric Hoffman’s felony murder and aggravated battery convictions for the killing in October 2005 of Stacy Morton. Justice Johnson concurred in the result, but wrote separately to reiterate an objection he has to part of the Court’s lesser included offences jurisprudence. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Stephen Hill of the Court of Appeals.

Hoffman and a friend, Aaron Wood, had fallen out with Stacy Morton over claims that Morton had told Wood’s fiancee that Wood was cheating on her. In September 2005 the three men were in a fight. In October 2005 Wood and Hoffman were walking past Morton’s house when Morton invited them in. While inside the house Hoffman and Wood beat Morton, Hoffman with brass knuckles. The two men then left and went to a bar, where they drank and took meth. Afterwards they returned to Morton’s house, cut the telephone line and broke in through the kitchen. There they picked up a kitchen knife, and used it and their own knives to stab Morton multiple times. Both men stabbed Morton, who died soon after.

Hoffman and Wood were both convicted of felony murder. Hoffman appealed his conviction on the grounds that the jury should have been instructed on a lesser included offense that they could convict him on in place of felony murder, since he argued that the jury might have found that he entered the house with the intention to commit only simple battery (a misdemeanor). The court rejected this argument. In felony murder cases the trial court only needs to instruct on a lesser included offense when the evidence of the underlying felony is weak or inconclusive. This is because felony murder stems from a death during the commission of a crime and the underlying crime provides the necessary intent to secure the murder conviction. The court held that there was nothing weak or inconclusive about the evidence of Hoffman’s underlying crime of aggravated burglary.

The court also rejected Hoffman’s arguments that the coroners report did not prove whether Morton died as a result of the first beating (where Hoffman was invited into the house and therefore it would not be felony murder) or the second, and Hoffman’s argument that the jury should not have been shown autopsy photos. The Court held that since Morton was alive at the time of the second attack, no matter what would have happened without it, it was directly responsible for his death. Autopsy photos were admissable as they met part of the State’s burden to prove all the elements of its case, namely the cause of death.

The Court therefore affirmed Hoffman’s conviction and life sentence.

Justice Johnson concurred. He objects to the rule that felony murder lesser included offences be based on the evidence of the underlying crime. He would base the rules around that instruction on the evidence of the alternative crime. In this case, he dispenses with that possibility in one line since the definition of simple battery is touching “in a rude, insulting, or angry manner”, and no credible jury would have believed that was all he intended when he entered the house the second time. Johnson wrote more fully about his position in State v. Jones (2008), which we covered here.

Decision: State v. Gant

January 30th. The Kansas Supreme Court has issued its opinion in State v. Gant (No. 98,026). In a unanimous decision, authored by Justice Rosen, the Court rejected Christopher Gant’s appeal against his conviction for felony murder. Gant had argued that a confession he made without a lawyer present should have been suppressed at trial. Note: Former Chief Justice McFarland was a member of the Court at the time this case was argued, but did not take part in the decision. Her place was taken by Judge Christel Marquardt of the Court of Appeals.

On March 20th 2006, Gant had driven three armed men to a pair of addresses. At one of these addresses the three men attempted to rob one Donta McDonald and shot him dead when he did not comply. Gant was convicted of Felony Murder for driving the killers to McDonald’s house along with attempted aggravated robbery. [The three other men were also charged with the murder of someone at the other address Gant drove them to, though Gant was not as he had left by this time].

When Gant had been arrested he was with two women. As he was arrested he shouted some things to them – including that he loved them and asking them to get him a lawyer. On arrival at the police station the interviewing officer was informed he had requested this. Gant was read his Miranda rights and signed a card to indicate that he would nonetheless be interviewed without a lawyer present. At no point did he ask the police for a lawyer (there was some quibbling over this but those are the facts of the case as proven to the District Court). Gant confessed to his role in the killing of McDonald. At trial he sought to have his confession withheld from the jury on the grounds it was made without a lawyer present. The District Court rejected this on the grounds that he had knowingly waived his Miranda rights. At any point in proceedings had he asked the police for a lawyer he would have received one.

The Court also rejected an argument by Gant that his trial was prejudiced by the presence of one of the detectives (and witnesses) on the end of the prosecutors table and an argument that his enhanced sentence for the attempted aggravated robbery conviction fell foul of the United States Supreme Court’s Apprendi line of cases. The Court rehearsed the definition of felony murder for Gant in denying his pro-se argument that he was wrongly convicted since he had not shot McDonald and had not been attempting to rob him (since he was remaining in the car he was driving). Finally, the Court also rejected Gant’s argument that since one of his accomplices had received a plea deal, his own prosecution was discriminatory. This was a long-shot argument since his associate accepted the plea deal after Gant’s conviction!

Gant’s life sentence remains intact at the conclusion of the case.

Decision: State v. Bennett

January 30th. The Kansas Supreme Court has issued its opinion in State v. Bennett (No. 98, 038). In a unanimous opinion, authored by Justice Davis, the Court held that requiring probationers consent to warrantless, suspicionless searches as a condition of their probation violates their rights under the 4th Amendment to the United States Constitution and Article 15 of the Kansas Bill of Rights. Note: Former Chief Justice McFarland was a member of the Court at the time this case was argued, but did not take part in the decision. Her place was taken by Judge Christel Marquardt of the Court of Appeals.

The facts of the case are straightforward. Nicholas Bennett was convicted of possession of methamphetamine and placed on probation. As a condition of probation the State asked for and the District Court imposed a requirement that Bennett consent to any searches by a corrections or law enforcement officer. At sentencing Bennett objected to this condition as a violation of his right to be free from unreasonable searches. The District Court rejected his argument, noting that this condition is a common and standard one used in Kansas. Bennett appealed, and won his case in the Court of Appeals which held that the probation condition was unconstitutional. The State appealed that ruling.

During the process of the case Bennett’s probation expired. He moved to have the case dismissed as moot, but the Kansas Supreme Court rejected that, noting that the case concerned an issue of public importance that was likely to be repeated, and noting that it was also the kind of issue where due to the time involved in appeals mootness of an individual case would often be an issue.

The Court approached the question with an analysis of three United States Supreme Court cases. Two of which held that probationers can be searched on a ‘reasonable suspicion’ standard, one of which (Samson v. California (2006)) allowed random searches of parolees. The State argued that Samson by extension also allowed warrentless searches of probationers. The Court noted (though it was not bound by this) a 10th Circuit of Appeals analysis of the applicability of Samson to Kansas law which declined to apply Samson here because the statutory framework for the searches was not the same as in the California case. Having done this, the Court ruled that probationers are on a continuum of liberties between a free citizen at one end and a prisoner at the other. As such they have more freedoms than parolees. The Court refused to go further than U.S. Supreme Court cases which upheld searches on a ‘reasonable suspicion’ standard, and instead ruled that Bennett’s probation condition was a violation of his constitutional rights.

Normally, when a state court makes a ruling based on the Federal constitution its decision is appealable to the United States Supreme Court. In a case like this one where a major part of the State’s approach to probation has been banned, one might expect such a move. However the Court stated that its ruling also applied under the Kansas Bill of Rights, though there is no separate analysis of that in the opinion. It is therefore not clear whether this ruling is appealable (or rather whether a successful appeal to the US Supreme Court would have any effect). We would welcome comments on this post by those who have a clear answer to that question.

Decision: Hodges v. Johnson

January 30th. The Kansas Supreme Court has issued its decision in Hodges v. Johnson (No. 97,062), a dispute over the implied warranty of merchantability (which applies to all commercial transactions in Kansas) on a used car. In an opinion written by Justice Davis, a unanimous court overturned the Court of Appeals and ruled that the implied warranty can apply to air conditioning systems in a car. Notes: Robert Davis, the author of the opinion is now the Chief Justice of the Court following the retirement of previous Chief Justice Kay McFarland. At the time this case was argued, McFarland was still on the Court. Justice Nuss was recused from this case. His place was taken by Senior Judge Edward Larson.

In January 2005 Dr and Mrs Hodges bought a 1995 Mercedes with 135,000 miles on it from Jim Johnson’s luxury used car dealership in Saline County. Johnson told the Hodges that he had been driving the vehicle and that it was a “perfect car”. About a month later, on first using the air conditioner the Hodges discovered the air conditioner did not work properly. On two occasions their mechanic added freon to the system, but it failed again in May and he reported that several components needed replacing at a cost of $3-4000. Around the same time it was discovered that Johnson had had a mechanic add a product called Super Seal to the AC when he was using the car himself. This mechanic stated that he would not have recommended doing this since Super Seal caused problems with AC systems. The Hodges requested that Johnson pay the costs of the repairs, he refused.

The Hodges then brought a Small Claims Court action which they won, winning around $3500 in damages. Johnson appealed this case to the District Court. When this step is taken the case is retried by the District Court. The Hodges won again, however the District Court refused to award them attorney fees on the grounds that Johnson had not deliberately misrepresented the car. Both Johnson and the Hodges appealed to the Court of Appeals. The Court of Appeals overturned both rulings of the District Court, noting that the District Court was bound by the wording of the statute to award costs to the Hodges if they won, but found that as a matter of law the implied warranty of merchantability did not extend to an air conditioning system since the primary use of the car was unaffected.

The Kansas Supreme Court has reversed this ruling of the Court of Appeals finding it not to be based on established precedent or the plain language of the statute in question (K.S.A. 84-2-314). The warranty attaches to all sales as a matter of law and covers the ordinary uses of the goods sold, not just their primary ones. Exactly which aspects of a particular transaction are covered by the warranty is a question of fact, to be determined on a case by case basis by the District Court. Existing case law should govern this fact-based determination: the Court reiterates a 1980s decision which notes that differences apply between a nearly-new used car and a junker ready for scrap and the way the car was sold along with its price play a role in this.

The Court upheld the Court of Appeals’ decision on Attorney fees, and therefore ordered the District Court to hold a hearing on the appropriate award to make to the Hodges on this matter. It also upheld the statutory arrangement for attorney fees in cases appealed from the Small Claims Court (where only the victor in that Court can be awarded costs if they prevail again in District Court) against an Equal Protection challenge by Johnson. The Court ruled that this passes the Rational Basis test since anyone choosing to lodge an appeal from the Small Claims Court does so knowing that they will be incurring legal costs, while those choosing that venue generally do so without representation and in the knowledge that damages are capped at $4000.

Finally, the opinion awarded the Hodges attorney fees for their successful appeal to the Kansas Supreme Court, amounting to a further $4000 Johnson must pay.

Decision: State v. Brinklow

January 30th. The Kansas Supreme Court has issued its opinion in State v. Brinklow (No. 96,231). In a unanimous opinion, written by Justice Johnson, the Court vacated Earl Brinklow’s conviction for six counts of indecent liberties with a child. The case was remanded for a new trial in the light of several irregularities at trial which the Court said combined to deny Brinklow a fair hearing. Note: Former Chief Justice Kay McFarland (who was still a member of the Court at the time of argument) did not participate in the case. Her place was taken by Judge Cristel Marquardt of the Court of Appeals.

In April-May of 2001 Brinklow allegedly molested his 11-year-old stepdaughter, A.C. When A.C. reported this to her mother a disturbance ensued and police were called to the house. A.C. told the police what happened. Brinklow maintained that it was a lie concocted by the girl to get him out of the house. The next day A.C. withdrew her allegation, saying it was made up. Brinklow and his wife separated. In 2005 A.C. attempted to kill herself. When asked by a psychiatrist why she had done so, she reported her original claim about Brinklow. Brinklow was arrested and charged with six counts of indecent liberties with a child.

At trial, Brinklow sought to have various witnesses sequestered since his defense hinged in part on claiming that the story was concocted. The judge asked the prosecutor if he objected to this and the prosecutor did. Brinklow’s motion was denied. He appeals this decision as well as several claims of prosecutorial misconduct.

The Court ruled for Brinklow that the trial court had abused its discretion when deciding Brinklow’s sequestration motion. The State has no veto of such motions, they are left up to the trial court. By seemingly relying on the prosecutor’s consent the judge committed an error of law. The Court further notes that the mother was asked questions about her daughter’s testimony that took the form of leading her into agreeing with what her daughter had said with no elaboration. Since Brinklow’s sequestration motion was an attempt to prevent this from happening, the Court ruled that he suffered prejudice from the error.

The Court ruled against most of Brinklow’s allegations of prosecutorial misconduct finding that they fell within the latitude left to prosecutors at trial. However it found fault with a section of the summing up in which the prosecutor told jurors that “sometimes you just know” when someone is guilty. The Court held that this could have led jurors to use a weaker standard of proof than ‘beyond a reasonable doubt’. The Court noted that a previous case where a prosecutor was not faulted for using the phrase “‘You just have to intuitively know when you see it” was different because that prosecutor was referring to what the definition of ‘beyond a reasonable doubt’ was. In this case there was no such linkage. The Court also found fault with one statement which vouched for the credibility of a prosecution witness and one which it held was an appeal to the jurors emotions. Both these errors were fleeting and the Court said that by themselves they would not be sufficient for Brinklow’s appeal to prevail. Combined with the others, especially the sequestration motion error, the cumulative errors were enough.