It is a defense to the charge of battery if a parent's use of physical force upon a child was reasonable and appropriate and with the purpose of safeguarding the child's welfare or maintaining discipline.
Thursday, December 30, 2010
Parental discipline a common law defense in Kansas
Tuesday, December 21, 2010
Another downward departure upheld
On appeal, the State only challenges the district court's first reason for the dispositional departure, i.e. that Craver was not the ringleader and did not participate in the planning of the drug manufacture. The "argument and authority" section of the State's brief is three pages in length. The thrust of the State's argument is that the district court erred by granting Craver a departure on the ground that she played a minor role in the crimes for which she was convicted. Although the State's brief contains a passing reference to Craver being a long-time drug addict, the brief contains no argument that Craver's drug problem is not a substantial and compelling reason for departure. An issue not briefed by the appellant is deemed waived and abandoned.
. . . .
Generally, when the district court offers two independent bases for its judgment, the appellant's failure to address an alternative basis for the district court's decision is a sufficient reason to deny an appeal. Because the State does not challenge the district court's alternative basis for granting Craver a dispositional departure, i.e. that Craver has a severe drug problem, this is sufficient reason to deny the State's appeal.The COA went on, though, to hold that Judge Chambers' uniquely tailored sentence for Ms. Craver was supported by the record and was "consistent with the principles underlying the [Kansas Sentencing Guidelines Act.]"
Saturday, December 18, 2010
Acquittal in Reno County murder case
Friday, December 17, 2010
Huff named judge in Douglas County
Tuesday, December 14, 2010
New Hampshire has a state constitution
The defendant argues that the seizure violated his rights under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the Federal Constitution. We consider his arguments first under the State Constitution, using federal cases only to aid in our analysis. See State v. Sawyer, 147 N.H. 191, 193 (2001). Part I, Article 19 of the New Hampshire Constitution provides that every citizen has “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”
. . . .
In this case, the officer testified that he approached Boutin’s vehicle, “[j]ust to see if everything – if anything was wrong, make sure everything was okay.” He testified that he could not tell if there was an accident, if the vehicle was abandoned or if any occupants may have needed assistance or had health concerns. He also observed that Boutin’s vehicle was pulled off to the side of the road, but facing the wrong way. As in Boyle, while the officer may have had generalized concerns about the vehicle and its potential occupants, he did not describe any specific and articulable facts that justified the intrusion of Boutin’s protected interests. Boutin’s car was parked legally in a pull-off area and the officer did not observe any obvious signs of an accident, that the car was disabled, or that the passengers were in any type of distress. In short, the officer’s concerns amounted to little more than a hunch. While the officer testified that he was concerned in part because it was dark and snow covered the ground, “[w]inters are traditionally long in [New Hampshire], and we cannot adhere to a theory that essentially renders [Part I, Article 19] protections seasonal.”Because we conclude that Boutin prevails under the State Constitution, we need not reach the federal issue.
This seems to me to be the right method of analysis. First, consider the claim independently under the state constitution. If necessary, consider the claim under the federal constitution. It's the only way to really show any fealty to the state constitution.
Thursday, December 09, 2010
January 2011 KSC docket
January 24--Monday--a.m.
State v. William Bennington, No. 98,656 (Sedgwick)
Direct appeal (petition for review); Rape
Rachel L. Pickering
[Affd/Rvd/Rmd; Luckert; Oct. 28, 2011]
- Improper admission of hearsay statements
- Prosecutorial misconduct
Sentencing appeal (petition for review)
Richard Ney
[Dismissal of appeal affirmed; Beier; March 18, 2011]
- Introduction of false information at sentencing
- Improper imposition of harsher sentence than more culpable co-defendant
- Improper comment on right to silence at sentencing
Direct appeal; Capital murder (life sentence imposed)
Reid T. Nelson
[Affirmed; Moritz; March 2, 2012]
- Improper search of computer (defective warrant)
- Failure to suppress coerced statements
- Improper admission of hearsay statements
- Gruesome photographs
- Failure to change judge
- Improper presumption of intent instruction
Direct appeal; Capital murder (life sentence imposed)
Sarah Ellen Johnson
[Affirmed; Moritz; Feb. 10, 2012]
- Improper jury verdict forms
- Prosecutorial misconduct
- Gruesome photographs
- Improper deadlocked jury instruction (Salts)
January 25--Tuesday--a.m.
State v. Randy Chavez, No. 103,168 (Sedgwick)
Sentencing appeal (Jessica's Law)
Rachel L. Pickering
[Aff'd/Vac'd; Rosen; July 15, 2011]
- Improper imposition of hard-25
- Improper imposition of lifetime electronic monitoring
- Failure to grant downward departure
K.S.A. 60-1507 appeal (petition for review)
Will Wimbley, pro se (brief); Roger L. Falk (argue)
[Rmd to COA; Johnson; Nov. 23, 2011]
- Ineffective assistance of trial counsel
Direct appeal (petition for review); Second-degree murder
Carl Folsom III (brief), Shawn E. Minihan (argue)
[Affirmed; Biles; May 11, 2012]
- Proseutorial misconduct
- Improper eyewitness identification instruction
- No waiver of right to testify on record
January 26--Wednesday--a.m.
State v. Derrick Freeman, No. 100,792 (Leavenworth)
Motion to withdraw plea (petition for review)
Michael G. Highland
[Vac'd/Rmd; Nuss; April 1, 2011]
- Improper denial of motion to withdraw plea
Motion to withdraw plea
Patrick H. Dunn
[Affirmed; Johnson; March 25, 2011]
- Conflict of trial counsel on motion to withdraw plea
- Improper denial of motion to withdraw plea
Direct appeal (petition for review); Agg battery
Lydia Krebs
[Reversed; per curiam; Feb. 17, 2012]
- Insufficient evidence of recklessness
- Prosecutorial misconduct
- Juror misconduct
January 27--Thursday--a.m. (Old Kansas Supreme Courtroom)
State v. Kevin Hernandez, No. 101,837 (Riley)
Direct appeal; First-degree murder
Matthew J. Edge
[Affirmed; Rosen; July 29, 2011]
- Prosecutorial misconduct
- Failure to give voluntary intoxication instruction
- Improper sentencing (identical offense doctrine)
January 28--Friday--a.m.
State v. Jerry Sellers, No. 101,208 (Harvey)
Direct appeal; Agg indecent liberties (Jessica's Law)
Michelle Davis
[Aff'd/Vac'd; Beier; April 22, 2011]
- Failure to order evaluation of complaining witness
- Multiplicity
- Lifetime postrelease is cruel and unusual punishment
Motion to correct illegal sentence (petition for review)
Michael P. Whalen
[Rvd/Rmd; Nuss; Aug. 5, 2011]
- Improper finding that claim re: uncounsel misdemeanors is precluded
K.S.A. 60-1507 appeal (petition for review)
Michelle Davis
- Denial of right to be present at evidentiary hearing