Posts Tagged ‘Decisions_12-5-2008’

December 5th: Remaining opinions

December 16, 2008

December 5th. The Kansas Supreme Court has issued a number of unpublished opinions. Unpublished opinions are supposed to be those where the case turns on the straightforward application of existing law. Though widespread, the practice is not without controversy – it has been criticized elsewhere for allowing courts to hide ‘stinkers’ as well as being unnecessary in the age of the internet where the size of printed materials is no longer a constraint. These cases are not available online. If anyone is aware of any controversy surrounding them, please contact this blog and we will investigate. The unpublished opinions are:

Docket Number / Case Name / Judge / Disposition / County
98,260 — State v. Walls — Per Curiam — Affirmed — Shawnee.
98,887 — State v. Silhan — Per Curiam — Appeal dismissed — Reno.
99,440 — State v. Grogg — Per Curiam — Affirmed in part and dismissed in part — Nemaha.
99,444 — State v. Saling — Per Curiam — Affirmed in part and dismissed in part — McPherson.
99,530 — State v. Hull — Per Curiam — Affirmed in part and dismissed in part — Reno.
99,637 — State v. Dirks — Per Curiam — Affirmed — Lane.
99,747 — State v. Hopkins — Per Curiam — Affirmed in part and dismissed in part — Lyon.
99,855 — State v. Downtain — Per Curiam — Affirmed in part and dismissed in part — Butler.
99,924 — State v. Ross — Per Curiam — Affirmed in part and dismissed in part — Sedgwick.
100,105 — State v. Anderson — Per Curiam — Affirmed in part and dismissed in part — Riley.
100,164 — State v. Jackson — Per Curiam — Affirmed — Shawnee.

The Court also issued five unanimous opinions on disciplinary matters regarding lawyers and licenses to practise in Kansas. These cases are summarized on the Court’s own website.


Decision: State v. Baker

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Baker, No. 98,498, the Court followed up its decision in Anderson by despatching another case in which a convicted murderer sought to have his conviction overturned because the jury at his trial was not instructed on the law governing the defense of compulsion. This was another unanimous decision, authored by Justice Nuss. Carl Baker, a hobo on the run from the law, aided fellow vagrant Charles Hollingsworth in the killing of David Owen at a homeless camp in the woods near the Topeka Rescue Mission. Owen, was an activist who tried to persuade the homeless to return to society, and who had in the past destroyed other homeless camps to disrupt their inhabitants lifestyles as part of this campaign. Following an altercation in the camp, Hollingsworth and Baker took Owen out of the camp, tied him to a tree with a rope rigged to asphyxiate him and left him to die.

The trial court refused to instruct the jury on Baker’s claim that he acted as he did out of fear of what Hollingsworth would do to him otherwise. Baker appealed, arguing his absolute right to make his own defense. The Supreme Court rejects his appeal because (based on the circumstances of the crime) no rational factfinder would agree with his theory even when looking upon the facts in the light most favourable to him. These included:

  • Baker’s possession of a machete throughout the events leading up to the murder and the murder itself.
  • The fact that others removed themselves from the crime, and in one case the camp without incident.
  • Baker’s returning to the scene of the crime to help dispose of the body.
  • Opportunities which presented themselves for Baker to elude Hollingsworth.

The Court also rejected three other arguments made by Baker:

  • That the use of photographs of Owen’s body were prejudicial (the Court ruled that they were relevant to the medical testimony about cause of death in the trial).
  • That the prosecutor was guilty of misconduct for using a sports team analogy for ‘aiding and abetting’ which implied mere presence was enough to convict. (Rejected on the context of these within the rest of the prosecutors remarks)
  • That Baker’s sentence enhancements taking into account past convictions violated the US Supreme Court’s Apprendi decision. (Rejected with a two sentence reference to established Kansas case law on this point).

Baker will continue to serve his 20 year (minimum) life sentence, followed by 233 months for kidnapping. Fortunately, Baker is 62 years old and will most likely die in prison.

Decision: State v. Thompson

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Thompson, No. 94,254, the court issued a unanimous opinion, authored by Justice Luckert. The case concerned Dennis Thompson, who was convicted of a number of felonies for operating a meth lab in his garage. The case has been bobbing up and down between the District Court, court of Appeals and Supreme Court for the past three years, and involves the way different anti-drug statutes interact. The court makes three rulings of legal significance, though none are surprising based on the direction of its jurisprudence.

  • That Thompson’s convictions for possession of lithium and possession of pseudoephedrine under the ‘possession of drug paraphenalia with intent to manufacture’ amounted to two counts of the same offence (since both components are required for the process that is criminalized) and thus violate Double Jeopardy. The conviction for the lithium is therefore set aside.
  • That ‘possession of pseudoephedrine with intent to manufacture methamphetamine’ (a level 1 felony) is substantially the same as ‘possession of drug paraphenalia with intent to manufacture’ (a level 4 felony). Thompson’s conviction for the former is therefore set aside so that he be resentenced to the lesser offence.
  • That ‘manufacture of methamphetamine’ (a level 1 felony) is not the same as ‘use of drug paraphernalia with intent to manufacture’ (a level 4 felony) and that that part of Thompson’s sentence therefore stands.

In arriving at these conclusions the court clarified its Double Jeopardy and Identical Offense rules and tests. Kansas’ Identical Offense doctrine is a firm part of the legal landscape – perhaps when the legislature returns to session next month lawmakers can spend some time tidying up the mess of overlapping statutes before they craft any new ones. In a time of budget crisis doing so would save on the legal fees created by the seemingly endless stream of these cases.


January 28th. The Kansas Supreme Court modified its opinion in this case to remand Thompson’s case to the Court of Appeals to determine if he should receive a lighter sentence for manufacture of methamphetamine. The revised opinion is here.

Decision: State v. Gill

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Gill, No. 96,531 – a unanimous decision in a criminal case authored by Justice Johnson – the Court continues its work clarifying the applicability of the Ortiz exceptions to the rule that appeals must be filed within ten days. To recap, the Ortiz exceptions are a judicially created reason to file a late appeal, where circumstances at trial denied the defendant the fundamental fairness aspect of due process. A three step process is used to determine whether this applies:

  1. First the one filing the appeal must prove that they were not informed of their right to appeal (or the time limit thereon).
  2. If they succeed at this, the State can counter by proving that they knew of this right anyway.
  3. If the State is unable to do this, the defendant must prove that they wanted to appeal their sentence (‘would not let the matter rest’) at the time and would have done so had they known how.

This case itself is essentially a meritless action brought by Raymond Gill appealing his life sentence for second degree murder, which results in Mr Gill being denied his appeal. The reason the Court appears to have taken it is to express some guidance about how to judge the third step in the Ortiz process, since the trial judge’s statement to him was deficient and the State made no attempt to prove that Gill knew of his appeal rights. In the end it comes down to the long delay between Gill’s sentence in 1998 to his first attempts at putting together an appeal (in 2000, a putative appeal against his conviction which would have been invalid under his plea agreement anyway) to his filing a request for an out of time appeal (in 2006). the Court suggests (without saying the dates involved are significant) that Gill’s actions show that he ‘let the matter rest’, and therefore fails the third step of the Ortiz analysis.

Decision: State v. Angelo

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Angelo, No. 96, 175, a unanimous criminal law decision authored by Justice Nuss rejected Patrick Angelo Jr’s appeal of his double conviction for first degree murder. The case arose over the killings of Kevin Brown and Jamie Wilson in a Wyandotte County drug house. Angelo was reportedly angered at Brown over advances Brown had made to his girlfriend and possibly over a ring which he had leant to Brown. On February 20th 2004 Angelo showed up at the house and having lured Brown into the bathroom, shot him in the head. Wilson was in the room next to the bathroom – she was also shot in the head, presumably for having heard the first killing. After an initial trial resulting in a hung jury, Angelo was retried and convicted. He was sentenced to two consecutive 25-life terms.

On appeal Angelo raised several alleged failures at this trial:

  • That his right to a speedy trial was denied because of a delay in starting his trial while he was held in a Missouri gaol for unrelated reasons
  • That the State excluded jurors for racial reasons
  • That the trial court should have instructed the jury that it could bring in a verdict on the lesser charge of second-degree murder
  • That the trial court should not have allowed the state to present evidence of Angelo’s bad character
  • That the trial court should not have allowed the state to play a recording of a defense witness’s police statement in rebuttal to her testimony after she was no longer on the stand
  • That the sum of these errors deprived Angelo of his right to a free trial

The court disposed of each of these and affirmed his conviction – Angelo will serve his sentences. However; on two of them, while rejecting Angelo’s claims, the Court found error in the trial court’s actions. These errors did not rise to the level of imperilling Angelo’s convictions, to wit:

  • The Court ruled that the trial court should have instructed the jury on lesser charges, since a trial judge has an affirmative responsibility to do so. In this case however, Angelo had insisted beforehand that the court not do so. Therefore, since he invited the error, the Court ruled that he cannot benefit from it.
  • More cloudily, the Court ruled that the State should not have been allowed to present evidence of Angelo’s bad character because he had not opened the door to it by presenting evidence of his ‘good’ character. The trial court had ruled that the defense cross-examination of a prosecution witness had openned the door when the defense counsel asked the witness to agree that his client was a ‘pretty easy going guy’. Angelo maintained that this was merely developing testimony that had begun with a statement to the prosecution that the incident under discussion (not the murders) was the first time the witness had seen Angelo get violent. The Court sided with Angelo on this, because the prosecution had not objected to its own witness stating that this was the first time he had seen Angelo being violent. In this case the Court then ruled that the error did not prejudice Angelo because the testimony of this witness, to which Angelo did not object, sufficiently established Angelo’s violent character, with or without the further evidence that should not have been admitted. Prosecutors should beware this ruling for fear of being tripped up in future, less clear cut situations, where there witness says something positive about a defendant.

Decision: Hale v. Brown

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in Hale v. Brown, No. 97,232, the Court declined to widen the type of action which could give rise to liability in negligence cases, as urged by one Mary Hale. In a unanimous opinion, authored by Justice Rosen the decision of the Court of Appeals and the District Court to dismiss Hale’s suit against a Jason Packard and the Topeka Electric Construction for allegedly causing her car to be struck by Judy Brown, resulting in injuries to Ms Hale. Packard had passed out and crashed his vehicle (owned by his employer, Topeka Electric Construction) on I-470 in Topeka. Some 35 minutes after the accident, Hale slowed down while driving past and was hit from behind by Brown, who did not. Hale has settled her claim against Brown already.

Hale argued that due to Kansas adopting the principle of comparative negligence in personal injury cases, the old common law principle that a tort must have a proximate cause no longer applied. She also argued that since this was the case the attribution of fault (and compensation) between Brown and Packard becomes a fact-based decision to be left to the Jury. The Court rejected both arguments, since proximate cause was still a valid concept in its case law and since the intervening time between Packard’s accident and Hale’s meant that the chain of events between the accidents had been broken. Since this was an appeal of a motion to dismiss the Court based its ruling on an assumption that the events were entirely as alleged by Hale.

As a result of this decision, the Kansas Courts will not be flooded with many more lawsuits seeking to take advantage of a loosening of personal injury law, something which was a real possibility had the Court ruled the other way.

Decision: State v. Anderson

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Anderson, No. 97,420, the Court unanimously rejected the appeal of one Walter Anderson against his conviction in Wyandotte County for felony murder and aggravated robbery. The conviction arose from Anderson going through the pockets of Gustavo Ramirez-Mendez after he had been beaten over the head by one Timothy Bryant, a friend of Anderson’s. The crime was committed over an (unsuccessful) attempt to take $118 from Ramirez-Mendez, who died from his wounds six days later (January 20th 2005). Justice Nuss wrote the decision.

Anderson raised three arguments on appeal, only one of which was accorded much significance by the court. The two lesser arguments were an objection to testimony of witnesses who reported statements by the injured man that he was attacked by two black males, as this evidence violated the Confrontation Clause of the 6th Amendment, and an objection to the jury instructions at the trial for using the construction ‘innocent…until…guilty’ instead of the form ‘innocent…unless…guilty’. The Court rejected the latter argument since established caselaw is that while incorrect, this constrtuction does not amount to an error warranting reversal. On the former argument, the Court rejected Anderson’s argument (that due to Ramirez-Mendez being dead he was unable to confront his testimony via witnesses that he was hit by two men when he was actually hit by one man and robbed by another rather) as effectively harmless error. Without determining if the testimony should have been excluded the Court noted that the other evidence at the trial, including Anderson’s own testimony, was enough to convict him, even if the disputed statements had been excluded.

The bulk of the opinion was devoted to cleaning up inconsistencies in the Court’s jurisprudence over the defense of compulsion. After noting different threads which implied different standards to determine whether a Court should instruct the jury on the law of the defense of compulsion, the Court held that “A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory.” Anderson’s claim at trial was that he robbed Ramirez-Mendez under compulsion because he feared his friend Bryant would attack him if he did not. The Court agreed with the District Court that this claim was not sufficient to entitle him to a jury instruction on compulsion since there was no threat from Bryant and immediately after the robbery Bryant and Anderson went and bought and smoked crack together. Nothing in Anderson’s testimony gave the claim of compulsion any credibility.

Decision: State v. Boggs

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in State v. Boggs, No. 96,921, the Court agreed with the Court of Appeals and ordered a new trial for one Charles Boggs of McPherson. Boggs had been convicted of possession of marijuana and possession of drug paraphernalia after a pipe was found under the seat of a car he had been a passenger in following a DUI stop. Justice Davis wrote the unanimous opinion.

In throwing out the conviction, the Supreme Court affirmed its Gundy decision from 2006 that evidence of other criminal activity (in this case Boggs’ confession that he had smoked pot about a month earlier) is inadmissible except where used to prove a material fact under dispute (such as whether a person found in possession of a prohibited substance knew it was there and therefore intended to carry it). In this case Boggs was asserting that the pipe was not his and that he had no knowledge of it. The Court therefore determined that his intent was irrelevant and therefore his admission to being a drug user had no bearing on the State’s burden to prove that the pipe was his.

The Court further clarified that its Gundy ruling impacts all relevant cases in the State of Kansas that have not reached their natural end-point (i.e. where a conviction has resulted, an appeal held or waived and the time for any final appeal or rehearing has ended). The State had sought to argue that since Boggs was convicted before the Gundy decision that that precedent was not applicable to this case.

Finally, the Court also overturned (but did not vacate) some unpublished Court of Appeals rulings which appeared to contradict its decision and disapproved some pattern instructions for jury trials which summarized the relevant case law in contradiction to its decision.

Decision: Kansas Judicial Review v. Stout

December 16, 2008

December 5th. The Kansas Supreme Court handed down a Per Curiam opinion in the case of Kansas Judicial Review v. Stout, No. 100,170.
This case is arguably more important than the Phill Kline decision which was also handed down December 5th. It pertains to a Federal Case brought against the Kansas Commission on Judicial Qualifications by Kansas Judicial Review that seeks to have three provisions of the Kansas Code on Judicial Conduct struck down under the First Amendment to the United States Constitution. Kansas Judicial Review and its co-plaintiffs (two elected district judges) prevailed in US District Court and won a preliminary injunction. This ruling was appealed to the Tenth Circuit Court of Appeals which decided that the case raised questions of state law and policy and certified five questions to the Kansas Supreme Court for resolution. This opinion contains the answers to those questions.

Violating the canons of judicial conduct can result in a judge being removed from the bench. In analysing the canons, the Court held that:

  1. Depending on the questions involved, a judicial candidate could violate them by answering a questionnaire on disputed legal and political issues.
  2. A judicial candidate violates them by personally collecting signatures for their nomination.
  3. A judge’s “faithful and impartial performance of the duties of the office” includes all conduct relevant to the candidate’s performance in office.
  4. A judicial candidate violates them by appearing to commit themselves to a particular decision based on the reasonable observer standard.
  5. A judicial candidate does not violate them in completing a questionnaire if the questionnaire was a bona fide request which originated outside of the candidate and not being completed for the purposes of securing an endorsement.

This final answer was confused since it does not explicitly state that such an act would be OK, except in reference to requests from the media. It does not proffer advice that covers a questionnaire from a pressure group.

The decision of the court is unsurprising, though the absolute prohibition on a judge collecting their own nomination signatures is striking. Without the ability to do that, a judicial candidate requires a committee working on their behalf from the outset. By definition this reinforces the idea that only insiders get to be judges. Evidently these rules are designed to ensure quiescent judicial elections, which get no attention and which encourage candidates to hide their judicial philosophies through a chilling effect on their electoral activities. It remains to be seen whether the Tenth Circuit Court of Appeals will see it that way. (It should be noted that the Kansas Supreme Court was not asked to rule on the constitutionality of the canons).

Note: Justice Luckert was recused from this case. Her place was taken by Court of Appeals judge and unsuccessful Supreme Court applicant, Steve Leben.

Comprehensive Health of Planned Parenthood of Kansas v. Kline

December 16, 2008

December 5th. The Kansas Supreme Court today handed down a slew of opinions which will be covered here over the next few days. The most notable case was the decision in Comprehensive Health of Planned Parenthood of Kansas v. Kline, No. 98,747 This case is being covered extensively around the media and web, and therefore the summary here will focus on three areas: the legal significance of the ruling, Phill Kline and the Court itself. The decision was unanimous on the merits of the case, and was authored by Justice Beier, but Chief Justice McFarland and Justice Davis penned brief concurrences.

The background to this case is well known to anyone who has followed Kansas politics over the past few years and it is not necessary to relate all the details. Suffice to say, that during his tenure as Attorney General, Kline was investigating the abortion industry for illegal activities. A number of redacted medical records were subpoenad during this process. Kline lost his bid for re-election to Johnson County District Attorney Paul Morrison in 2006. Morrison was replaced as DA by Kline, who was appointed to serve out the remainder of Morrison’s term. In the course of this swap, Kline transferred the records relating to his investigation to the Johnson County DA’s office, and has continued the investigation there. Planned Parenthood brought this action to force the return of the documents and to have Kline cited for contempt of court. The Attorney General’s office (now occupied by Stephen Six, following Morrison’s resignation in disgrace last year) intervened in the case to demand the return of the documents.

Needless to say, the facts of this case are highly specific to a unique set of circumstances, and therefore as long term precedents have limited impact. However, it is important to note that the court ruled on several controversies, almost entirely in Kline’s favor. Among other things it held that:

  • There is no inherent conflict in holding (albeit fleetingly) both the position of Attorney General and County DA.
  • There is nothing illegal in the Attorney General transferring case documents to a County DA, even when both are the same person.
  • There is nothing illegal in the transfer taking place via private subordinates carrying the documents (though there is concern from the court over the audit trail of access to the documents)

For these reasons, the court rejected the Attorney General’s demand that the documents be returned. Additionally, the court rejected Planned Parenthood’s wish that Kline be cited for contempt and refused to order that Kline pay costs – it says it did this because it wanted to save Johnson County taxpayers their money, but whatever the reason Planned Parenthood is stuck with the bill.

At this point, readers may be wondering why this account does not match the tenor of other news stories. The reason for this is that the court did three notable things: one reasonable, one debatable and one extremely unusual. The first was that it ordered Kline to provide the Attorney General’s office with a copy of all the documents taken from Topeka. This is a reasonable position – in coming to this decision the court ruled that while Kline was well within his rights to transfer the information to Johnson County, he should not have removed all the original copies of the documents. The second outcome of the case is that Kline is also ordered to provide the Court with a copy of all further documentation generated during the course of the Johnson County investigation. This will be discussed further below, but is characterised as a sanction taken against Kline to punish him, which is why news coverage describes the case the way it does. The third is that the tone of the opinion is very aggressive and critical of Kline. Reading through the opinion one would think that Kline is about to receive a more severe punishment than he actually does. Again this will be discussed below.

From a legal standpoint, the case is of limited precedential value but a victory on the merits for Kline. In practical terms it means that the Johnson County prosecution of Planned Parenthood can continue (provided Kline’s successor Steve Howe wishes it).

Phill Kline
The author of this piece moved to Kansas after the 2006 election and therefore has little at stake in the controversies which surround Kline. For the record as an outside observer I felt that he was mistreated by the media and made out to be something he was not. However, such is politics. Conservatives are held to a different standard. Given that, it is worth reflecting on the lessons other conservatives can learn here. The court was extremely critical of Kline, did not like his actions and did not like his tone. However, they still handed him a victory. Had Kline been a bit more careful in what he did and how, and left a copy of the documents in the Attorney General’s office, this victory would have been total and we would be reading in the papers of a grudging vindication. Because the court was able to rule against him on one thing, we are not, and those who only read the headlines and first paragraphs will think that he lost. For this, Kline has himself to blame. Conservatives should take more care in managing perceptions and how they are able to be portrayed.

The Kansas Supreme Court
In a way the biggest loser in this affair is the Court’s reputation. Kline is almost done as DA. The case will live or die based on the internal politics of Johnson County and the Attorney General’s office. Planned Parenthood and others will eventually end up in court and will stand or fall on the merits of the case, not procedural oddities. This would have been true whatever the outcome. But this strange case will remain in the Court’s publications forever.

Justice Beier’s tone is scathing throughout the opinion. She dislikes Kline and wants you to know it. She mocks his defeat in the Johnson County primary election and darkly hints that the decision has no bearing on future cases investigating his potential ‘misconduct’, while forwarding the opinion to the Disciplinary Administrator. And it is this that motivates the concurrences by both the outgoing and incoming Chief Justice. Justice Davis clearly likes Kline as little as the rest of the court, but takes issue with the court’s characterization of ordering the release of the Johnson County documents to the Attorney General as a sanction. He considers that to be a stretch and would prefer that it be cast as relief. A subtle point, but if he had his way the papers would not be saying ‘Court sanctions Kline’. He also implies that the tone is a bit much. Chief Justice McFarland goes further and in addition to siding with Davis criticizes the opinion’s discussion of future investigations into Kline as inappropriate.

The intersection of Kansas law and politics is a place for bare knuckle fighters (witness Paul Morrison’s sudden fall from grace) so perhaps Justice Beier is exacting a little payback against Kline for getting the US Supreme Court to trash the opinion she jointly authored in Kansas v. Marsh. Perhaps she is more motivated by the abortion cases themselves. Whatever the reason, her rhetorical flourishes may have been satisfying but reveal an obvious antipathy to someone before the court that perhaps should have prompted a recusal. Kline is unpopular enough that none of this will matter when she is next due for a retention election, but we will watch future opinions by Justice Beier for repeat performances and note them if and when they take place.

This post has also been submitted to the Kansas Progress.