Posts Tagged ‘Johnson opinion’

Decision: Moser v. KDoR

September 4, 2009

August 28th. The Kansas Supreme Court has issued its opinion in Moser v. Kansas Department of Revenue (No. 96,734) an appeal from a suspension of a driving license. In a unanimous opinion, written by Justice Lee Johnson, the court held that an administrative appeal against a driving license suspension must be filed within 10 days of the suspension, or be procedurally blocked from further relief.

Brandon Moser was in a car accident and police suspect him of DUI. He refused a breath test. This was not the first time this had happened. Given all this, his license was suspended by the police officer attending the scene, who filled out a form notifying Moser that in 30 days his license would be suspended for 10 years, absent his appealing. Moser did not file an administrative appeal, and outside the 10 day period to do so filed a suit in District Court seeking to overturn his suspension on the grounds that the 10 year suspension was excessively penal.

The District Court heard his motion, because it was filed within 30 days of the suspension notice. The Court found that in this case the 10 day rule did not apply and that a separate 30 day rule did. The Court then rejected Moser’s case on the grounds that he had not used up his administrative remedies.

Moser appealed the latter part, the Department of Revenue appealed the ruling about the 30 day rule applying. The Court of Appeals held that the 10 day rule applied but affirmed the District Court’s ruling that it could not reach the merits of the case. Moser appealed to the Kansas Supreme Court.

The Kansas Supreme Court agreed with the Court of Appeals. It found that the District Court’s ruling that the 30 day appeal period applied was not supportable based on the plain reading of the statute. The 10 day rule is the one which applies. Therefore it found that there was no jurisdiction for the case to be heard in any court and affirmed the lower Courts’ dismissal of Moser’s actions.

Decision: State v. Leshay

September 1, 2009

August 28th. The Kansas Supreme Court has issued its opinion in State v. Leshay (No. 99,725), an appeal of a dismissal of drug charges in District Court. In a unanimous decision, written by Justice Lee Johnson, the Court held that the Sixth Amendment Right to Confront one’s accusers does not apply at a Preliminary Hearing to a forensic lab report, where Kansas law does not require a lab technician to testify. Note: Court of Appeals Judge Christel Marquardt served on this case, in place of former Chief Justice Kay MacFarland.

Wendell Leshay was accused of possessing Cocaine. After a Preliminary Hearing following his indictment, he moved to dismiss the charges against him on the grounds that the Kansas Bureau of Investigation (KBI) lab technician who had prepared the forensic evidence did not appear for cross-examination at the hearing. The District Court agreed, holding that the United States Supreme Court’s decision in Crawford v. Washington (2004) meant that the Confrontation Clause of the Sixth Amendment required that the technician be present.

The State appealed and the Kansas Supreme Court reversed the decision of the District Court. The court noted the U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts (2009), which made it clear that the confrontation clause applies to forensic evidence reports, but ultimately held that the Sixth Amendment Confrontation Clause does not apply at a Preliminary Hearing, rather it applies at trial. The Preliminary Hearing is a statutory creation, and therefore there is not a Constitutional obligation to allow confrontation regarding testimonial evidence introduced there.

The Court did note that there might be a Due Process argument about the inability to confront an accuser at a Preliminary Hearing. However, Leshay had not raised this argument in the District Court and therefore it was not available within the appeal.

The District Court’s dismissal of the charges was reversed and the charges reinstated. The case was then remanded back to the District Court to proceed.

Decision: State v. Trussell

August 26, 2009

August 21. The Kansas Supreme Court has issued its opinion in State v. Trussell (No. 99,411) a murder-conspiracy case that reads like something from a TV show. In a unanimous decision, written by Justice Lee Johnson, the Court affirmed Jerry Trussell’s convictions arising out of the 1997 murder of his friend and host “Punkie” Harrod.

Jerry Trussell and his wife Tammy became friends with the Harrods (Punkie and Kelly) in the 1990s. At one point Tammy left Punkie, claiming he was abusive, though a court awarded him temporary custody of their kids. She later moved back in with him after discovering she was pregnant and the divorce was abandoned. In 1997, after some conversations between the women, Kelly started having sex with Jerry in return for his agreeing to “get rid of” her husband. Later, Jerry and Tammy were evicted from their home and moved in with the Harrods. In 1997 the Jerry, Kelly and Tammy organized a scene in which Punkie and Jerry fought and Kelly shot him in the head. His body was buried in a shallow grave.

Suspicions were aroused and police interviewed the protagonists several times without success. In 2001, Tammy began telling the police different versions of the story and in 2004 she led police to the location of the grave though no body was recovered. In 2005 Jerry Trussell was tried for 1st degree murder and conspiracy but the jury failed to reach a verdict. At a subsequent trial in 2007, Jerry was convicted. Between the first trial and the second trial the District Court reversed itself over whether to admit some un-Mirandized statements given by Jerry to police in 2001, resulting in the admission of the statements.

On appeal Trussell raised several issues, which the Court dismissed quickly.

Trussell argued that the State had not presented sufficient evidence that he had intent to have Punkie killed, but the Court rejected this noting that intent can be formed quickly and the evidence before the jury was that Trussell had had ample time to form intent since the killing was planned ahead of time.

Trussell argued that a self-defense instruction should have been given to the jury even though he had not asked for one, and indeed his theory of defense had been that he was being set up as the fall guy by Tammy and Kelly. The Court held that District Courts have no obligation to proactively instruct on every possible theory of defense, especially ones which might conflict with the defendant’s own theory.

Trussell argued that his 2001 statements ought to have remained suppressed. The Kansas Supreme Court disagreed and upheld the District Court’s reasoning on the matter. Since the statements were given voluntarily and Trussell was able to leave of his own volition at any point, the Court held that this was a non-custodial interrogation and that therefore Miranda did not apply.

Trussell objected that the Prosecutor had often used leading questions and that the District Court allowed this. In fact whenever the Defense objected to the leading questions the Court had them rephrased or dropped. However, the transcript indicated that there were unobjected-to leading questions also. The Court held that it had no jurisdiction to rule on these since the Defense had not objected at trial. The Court indicated that Prosecutorial Misconduct might have been a better argument for Trussell to have made, but he hadn’t so the matter was not considered.

Trussell objected to the Trial Court’s decision to rule one witness as a hostile witness (thus able to be asked leading questions). The Kansas Supreme Court held that the Trial Court was in the right position to make that call and that the transcript showed it had considered the matter before making its ruling and therefore upheld it.

Trussell’s life sentence (without parole for 25 years) for murder and subsequent 12 year sentence for conspiracy was affirmed.

Decision: State v. Easterling

August 17, 2009

August 7th. The Kansas Supreme Court has issued its opinion in State v. Easterling (No. 100,454) a Jessica’s Law Sentencing Appeal. In a unanimous opinion, written by Justice Lee Johnson, the Court upheld David Easterling’s sentence to life without parole for 25 years, for the molestation of his granddaughter.

David Easterling sexually abused his 5 year old granddaughter. He was reported and arrested. During his interrogation (after waiving his Miranda rights), he admitted to having abused his daughter in the same way in the 1980s. His wife admitted that she had known about this. Easterling pled guilty to his crimes, in a plea arrangement under which the Shawnee County prosecutors agreed to request a departure sentence of just under 10 years instead of the presumptive Jessica’s Law sentence. The District Court noted the information about the 1980s abuse was contained in a sworn affidavit by a the interrogating police officer. The District Court refused the durational departure, sentencing Easterling to life without parole for 25 years.

Easterling appealed on two grounds. His first argument was that the inclusion of the evidence on the affidavit breached his Due Process rights to a fair trial. His second was that the Jessica’s Law sentence was a cruel and unusual punishment.

On the first argument the Court examined prior cases and determined that there was a Due Process question to be examined, making this the first Kansas case which explicitly states that Due Process must be afforded at sentencing. The Court found that, since the affidavit was signed under penalty of perjury, by a law enforcement officer and involved admissions by Easterling and his wife that a reasonable person would not make falsely, the evidence was considered to be reliable. It concluded that he had not been denied Due Process since the Court had notified him and his Counsel that it would be looking at the affidavit and he therefore in his argument for mitigation had had an opportunity to argue against it. Therefore the District Court did not deny Easterling his Due Process rights at trial.

On the challenge to the constitutionality of the Jessica’s Law sentencing regime, the Court found that since Easterling had not objected at trial on these grounds he could not raise the matter on appeal. It did consider whether the case’s procedural posture meant that it could consider the matter anyway, but decided otherwise.

Easterling’s sentence to life in prison without the possibility of parole for 25 years was therefore upheld.

Decision: State v. Bello

July 10, 2009

July 2nd. The Kansas Supreme Court has issued its decision in State v. Bello, an appeal against a conviction for child abuse. In a unanimous opinion, written by Justice Lee Johnson, the Court affirmed Juan Jose Bello’s conviction for aggravated criminal sodomy and aggravated indecent liberties with a child. However the Court vacated his ‘Jessica’s Law’ 25-years-without-parole sentence on the grounds that the State had not submitted the fact of his being over 18 years old to the jury for consideration. Bello will therefore be re-sentenced under the Kansas Sentencing Guidelines to a shorter sentence. No criminal history score information is included in the opinion to allow a calculation of how long Bello will likely serve.

Bello molested a seven year-old girl who was visiting his home with her parents. After Bello had twice gone to the room in which she and her brother were sleeping and molesting her, the girl told her parents. After a fight, police were called and Bello was arrested and charged.

At trial, Bello procured an expert witness who was to present a theory that the girl had been abused before and that she had mistakenly accused Bello. The “supporting evidence” for this abuse was an affidavit from Bello’s wife that she had seen the girl kiss her brother and that she had seen her climb into Bello’s lap. Bello filed a motion to allow this “evidence” to be introduced under the provisions of the Kansas Rape Shield Law which normally precludes evidence of past sexual activity by the victim unless the trial court allows it. The trial court denied the motion.

On appeal, Bello argued that the Kansas Rape Shield Law did not apply to situations where the prior acts were victimization in a crime and not consensual activity. The Supreme Court opinion indicates that the Justices found this to be an interesting argument but rejected it because Bello had not objected to the Statute at trial and therefore could not bring it up on appeal. Indeed, Bello had filed a motion under the terms of the statute he now challenged. One might also say that the Legislature is on notice to ensure the Rape Shield Law can also be used to protect victims in these situations.

Bello’s appeal of his conviction was thus rejected. However he also appealed his 25 year sentence on the grounds that a different sentence is applied to this crime depending on whether the defendant is over 18 or not. The State had not specified  Bello’s age in the charge, and the Jury was not asked to find that Bello was indeed over 18. Therefore, following the Apprendi rule, the Kansas Supreme Court held that Bello cannot be sentenced to the harsher sentence which applies to those over 18. His case was therefore remanded to the trial court for sentencing under the Sentencing Guidelines and not ‘Jessica’s Law’.

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: State v. Youngblood

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Youngblood (No. 96,850). In a unanimous decision, written by Justice Johnson, the Court vacated the conviction of Galen Youngblood for felony possession of marijuana. The case implicates the Sixth Amendment right to counsel and the use of convictions obtained without counsel for subsequent sentencing enhancements.

Galen Youngblood was detained on a driving on a suspended license charge in 2004. He was caught disposing of a marijuana pipe and was therefore charged with possession of marijuana. A first offense is a misdemeanor but a second offense can be charged as a felony. Since Youngblood had a prior misdemeanor conviction from Newton Municipal Court for the same offense, he was charged with a felony.

The Sixth Amendment the Right to Counsel attaches to misdemeanors that result in a prison sentence. This offense was one such misdemeanor, although in Youngblood’s case he had received a suspended sentence with probation. Youngblood filed a motion to dismiss the charges on the grounds that his prior conviction had occurred without counsel. The waiver of counsel document from his trial was blank and although the State could show that he had subsequently signed a waiver (after the fact) there was not evidence that he had knowingly waived his right. The District Court also heard evidence from the original judge who could not independently verify that he had spoken with Youngblood about his waiving his right, but who said that he always spoke to defendants about this.

The District Court ruled against Youngblood and held that since he had not been jailed on prior occasion the Sixth Amendment did not apply. Youngblood was convicted and sentenced (the Court does not specify the length of his sentence). Youngblood appealed. The Court of Appeals upheld his conviction, ruling that although he had been denied his Right to Counsel in the prior conviction (since the onus is upon the State to prove that he had knowingly waived it) it was still valid for its use here.

The heart of the case comes down to the way various Federal Caselaw has been applied in Kansas. The United States Supreme Court held in a case in the 1970s that the test as to whether the Sixth Amendement applied to a misdemeanor was imprisonment. In 1994 the U.S. Supreme Court held that a prior uncounselled misdemeanor conviction could be used to enhance a subsequent sentence if the State could show that the defendant had waived his right to counsel. Therefore in State v. Delacruz (1995) the Kansas Supreme Court held that the same rule applied in Kansas. Subsequently, in Alabama v. Shelton (2002) the U.S. Supreme Court held that even a suspended sentence that does not result in jail time is covered by this Sixth Amendment rule.

The Court of Appeals had held that Delacruz was compatible with Shelton and had therefore held that the prior conviction could be used to enhance the new charge. The Kansas Supreme Court reversed the Court of Appeals, ruling that this case is different to Delacruz in any case because the Delacruz rule allows a validly obtained uncounselled conviction to be used. Since Youngblood had received a suspended sentence, under Shelton, the Sixth Amendment did apply and therefore his original conviction was not constitutionally valid. Therefore it could not be used to enhance his present charge to a felony.

Decision: State v. Horn

May 8, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Horn (No. 100,373). In a unanimous decision, written by Justice Johnson, the court threw out a Jessica’s Law 25 year sentence that had been imposed on Joshua Horn for attempted aggravated criminal sodomy on a child under 14. Horn will be resentenced using the non-drug Kansas Sentencing Guidelines grid.

Joshua Horn attempted to commit aggravated criminal sodomy on a child under 14. Justice Johnson’s opinion does not cover Horn’s crime in any detail, and a web search turns up nothing so we cannot provide any more information about what led to his being charged. Under Jessica’s Law he was sentenced to a life sentence without the possibility of parole for 25 years.

Horn appealed his sentence. He argued that there is a conflict in the statutes describing sentencing. The crime he was convicted of covers attempting to commit any off-grid felony, and prescribes a sentence on the non-drug grid for a level one felony. However, Jessica’s Law prescribes a hard-25 sentence for the crime. The Court sided with Horn.

While the State had argued that Jessica’s Law was the more specific statute and therefore should govern the conflict, the Court held that either statute could be read as the more specific one. It also noted that in the same session of the legislature where Jessica’s Law was passed, that the Court had amended the statute concerning attempted felonies to make its sentencing rule not apply to two terrorism related offenses, but had not done so for Jessica’s Law.

Therefore the Court applied the Rule of Lenity which meant that of the two conflicting sentencing options the one most favourable to the defendant should apply. The Court did not provide any information about Horn’s criminal history, so it is not clear what his sentence will be, but it is possible to determine the lower limit: if Horn has a clean record or only one misdemeanor he could be sentenced to as little as 12 years.

Commentary: Justice Johnson’s opinion is a very brief one, yet significant because it removes a category of crimes from the provisions of Jessica’s Law. We feel confident in predicting that a Bill to make clear that the Jessica’s Law sentence applies to such cases will quickly be passed in next year’s legislative session. The moral of this story for the Legislature: spend more time cross-checking the statutes and be more precise about how laws are to work.

Decision: Tilzer v. Davis, Bethune and Jones

April 13, 2009

April 3rd. The Kansas Supreme Court has issued its decision in Tilzer v. Davis, Bethune and Jones (No. 99,678), a legal malpractice suit. In a unanimous opinion, written by Justice Johnson, the Court reversed a summary judgment issued by the Johnson County District Court to dismiss an action brought by the Tilzer family against their former attorneys over a class action lawsuit in Missouri. Note: This case was argued in the January sitting of the Court, after former Chief Justice Kay McFarland’s retirement. District Judge David King served as the seventh member of the court hearing the case.

The exact details of the case are unclear, due to the the records being under seal. The background is that the Tilzer family were among a group of people who sued Eli Lilly and Bristol-Myers Squibb for negligently allowing a pharmacist to dilute cancer drugs. They hired the Davis, Bethune and Jones law firm to act as their attorneys. This action was brought in Missouri. The pharmaceutical companies settled and the Missouri court established a process using two special masters to assess each claim and allocate money out of a capped settlement pot. The facts of the case, and documents obtained during the case were sealed as part of the settlement. The Tilzer’s objected to the terms of the settlement, but were compelled by a court order of the Missouri court to go along with it. Their attorneys filed an attorney’s lien to get their payment for services rendered from the Tilzers.

The Tilzers attempted to resist this, arguing that the terms of the settlement constituted an aggregate settlement, which would have required their attorneys to disclose certain information which they had not done. The Missouri court rejected this argument, but stated that its ruling did not foreclose any legal malpractice action they might want to bring. The Tilzers did not appeal the ruling in Missouri, but instead brought a fresh action alleging legal malpractice in Kansas.

Missouri has a rule which states that if one of two parties in a lawsuit might bring their counterargument as a separate claim, they cannot do so but must rather bring the matter up in the instant case (couterparty claim rule). Davis, Bethune and Jones successfully argued in the Kansas District Court that the legal malpractice claim should have been brought under this rule in the attorney’s lien hearing (the trial judge’s comments notwithstanding). In addition, the District Court also ruled that the Tilzer’s claim was blocked under collateral estoppel since it was already litigated in the Missouri actions. During the Kansas case the pharmaceutical companies intervened in the case to ensure the continued sealing of the documents. The other matter decided in the District Court was that that Court ruled that the settlement of the Missouri action was not an aggregate settlement.

In its decision the Kansas Supreme Court reverses the District Court on all but the sealing of the documents. On that point it held that the public policy interests of out of court settlement of class action lawsuits were served by the documents remaining under seal, while the Tilzers suffered no ill effects from the sealing. The Court noted that the proper venue for having challenged the sealing of the documents would have been an appeal in Missouri of the original settlement.

On the remaining points the Court ruled for the Tilzers:

Counterparty claim rule – the District Court had expanded the Missouri counterparty claim rule beyond its normal parameters influenced greatly by a decision in New Mexico regarding a similar rule. During the time the case has been on appeal the New Mexico Supreme Court overturned that decision, rather undercutting the logic behind the District Court’s decision. Therefore the Court determined that “Missouri’s compulsory counterclaim rule does not require a client to litigate a claim for legal malpractice in response to an attorney’s motion to enforce an attorney’s fee lien in the underlying action that gave rise to both the malpractice claim and the attorney’s fee lien”.

Collateral Estoppel – the Kansas Supreme Court ruled that the case was not collaterally estopped. It bases its decision on some disagreements with the Missouri Court’s process for arriving at a ruling which foreclosed certain avenues to the Tilzers to make their case which are open in the fresh case. Based on Missouri’s more lenient rules around collateral estoppel the Court held that there were sufficient parts of the Tilzer’s case which had not been adjudicated completely or properly to prevent them litigating them in the legal malpractice case.

Aggregate Settlement – in perhaps the most significant aspect of the decision, the Court held that the settlement in the Missouri case was an aggregate settlement, despite the ruling of the Missouri Court saying otherwise. The Court based this decision on a report compiled by the American Law Institute to define what exactly an aggregate settlement is. In this case the fact that the damages awarded to each participant in the lawsuit was not purely based on the facts of the case but influenced by the fact that the settlement pot was capped. This created an interdependency between the various claimants (since they shared in the award), which the Court held was the abiding mark of an aggregate settlement.

The case was therefore remanded to District Court for further proceedings on the merits of the Tilzer’s case.

Decision: State v. Fischer

April 10, 2009

March 27th. The Kansas Supreme Court has issued its opinion in State v. Fischer (No. 100,334), a criminal law sentencing appeal regarding the use of juvenile convictions in criminal history score calculations for the Kansas Sentencing Guidelines. In a unanimous opinion, written by Justice Johnson, the court held that while its decision in In re L.M. required the abandonment of the previous jury-trial free juvenile court system, any convictions which were final at the time it was decided remain valid for calculating criminal history scores. Note: This case was argued in the January sitting of the Court, after former Chief Justice Kay McFarland’s retirement. District Judge David King served as the seventh member of the court hearing the case.

Sarah Fischer pled guilty to two felony charges (the Court’s opinion does not detail what they were) in Sedgwick County District Court. Her criminal history score was calculated and she was sentenced to 40 months imprisonment. Subsequently she appealed her sentence on the grounds that her criminal history score was driven by juvenile convictions under the old system, and therefore since those convictions did not stem from a jury trial, the exception under Apprendi for prior convictions should not apply. [Under Apprendi v. New Jersey the United States Supreme Court held that factors increasing a defendants sentence must be proven to a jury beyond a reasonable doubt, but it excepted past criminal convictions from this rule].

The State argued that the Court lacked jurisdiction to hear the appeal since a presumptive sentence under the Sentencing Guidelines (such as the one Fischer received) cannot be appealed. The Court rejected this argument on the grounds that since the appeal was based on a constitutional claim that the criminal history was inadmissable, if it found for Fischer the criminal history score would have been wrongly calculated and therefore the sentence she received would not have been a presumptive sentence.

Moving to the merits, the Court rejected Fischer’s argument. It briefly recapped its In Re L.M. decision which held that since the juvenile justice system now mirrored the adult one, the right to a jury trial also attached and old precedents holding otherwise (dating from before the changes to the system) were no longer valid. It then went on to note that In Re L.M. created a new rule of procedure, but did so only for future and pending cases. It explicitly stated that its effect was not retroactive. Therefore Fischer has had the due process she was entitled to, even if today it would happen under a different set of rules, and her past convictions still count.