Chief Justice Nuss to retire

Here is a court press release announcing that Chief Justice Nuss will retire on December 17, 2019. He has served on the Kanas Supreme Court since 2002 and as Chief Justice since 2010. This will trigger the nomination process set forth in the Kansas Constitution utilizing the Supreme Court Nominating Commission to forward nominees to the Governor.  This is the second retirement from the Kansas Supreme Court, following Justice Johnson's recent announcement blogged about here.

[Update: here is a blog post reporting the short list from the Nominating Commission for this vacancy.]

[Further update: here is a blog post reporting the Governor's selection of Kenyan (KJ) Wall to fill this vacancy.]

September 2019 KSC Docket

Here are the criminal cases on the KSC docket for September 9-12, 2019. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website and archived (here) if you would like to watch any of these arguments.

September 9--Monday--a.m.

State v. Corey Yazell, No. 116,761 (Johnson)

Probation violation appeal (petition for review)

Randall L. Hodgkinson

[COA reversed; Rosen; June 19, 2020]

• Whether probation violation appeal moot

State v. Robert Ward, No. 116,545 (Franklin)

Probation violation appeal (petition for review)

Kasper C. Shirer

[COA reversed; Rosen; June 19, 2020]

• Whether probation violation appeal moot

State v. Jason Hachmeister, No. 114,796 (Shawnee)

Direct appeal; First-degree premeditated murder

Joseph A. Desch

[Affirmed; Stegall; June 5, 2020]

• Improper admission of bad act evidence
• Prosecutorial error in closing argument

State v. Anthony Becker, No. 118,235 (Ford)

Direct appeal; First-degree premeditated murder

Patrick H. Dunn

[Affirmed; McAnany; February 28, 2020]

• Prosecutorial error 
• Failure to give lesser-included offense instructions

September 10--Tuesday--a.m.

State v. Christopher Lyman, No. 114,312 (Geary)

Direct appeal; First-degree felony murder/ child abuse

Richard Ney

[Affirmed; Nuss; January 10, 2020]

• Newly discovered evidence requires new trial
• Brady violation
• Improper admission of medical expert testimony
• Improper admission of prejudicial photographs
• Change of judge improperly denied
• Improper exclusion of medical records review

State v. Samuel Harris, No. 112,883 (Lyon)

Direct appeal (petition for review); Robbery/kidnapping

Reid T. Nelson

[Affirmed; Biles; December 13, 2019]

• Insufficient evidence of kidnapping
• Failure to instruct on criminal restraint as lesser included offense
• Failure to give unanimity instruction
• Failure of trial counsel to file a motion for arrest of judgment

Ziad Khalil-Alsalaami, No. 115,184 (Riley)

K.S.A. 60-1507 appeal (petition for review)

Richard Ney

[Reversed/remanded; per curiam; September 11, 2020]

[Motion for rehearing granted and re-argued on December 18, 2020]

• Failure to object to admission of incriminating statements was IAC

September 11--Wednesday-a.m.

State v. Jeremy Claerhout, No. 115,227 (Johnson)

Direct appeal (petition for review); Second-degree unintentional murder

Meryl Carver-Allmond

[Affirmed; Rosen; December 6, 2019]

• Improper admission of prior diversion agreement
• Improper admission of police officer as crash data retrieval expert
• Failure to instruct on voluntary intoxication

State v. Kyle Chavez-Majors, No. 115,286 (Butler)

Direct appeal (petition for review); Agg battery (DUI)

Rick Kittel

[Affirmed/remanded; Rosen; December 20, 2019]

• Park ranger did not have probable cause to justify warrantless blood draw
• Park ranger did not have exigent circumstances to justify warrantless blood draw

State v. Darrell Broxton, No. 114,675 (Wyandotte)

Direct appeal (petition for review); Second-degree murder

Korey A. Kaul

[Affirmed/vacated; Stegall; April 17, 2020]

• Improper exclusion of document prepared by Florida prosecutor
• Improper classification of prior Florida burglary conviction

September 12--Thursday--a.m.

State v. Jalen Jones, No. 113,044 (Sedgwick)

Direct appeal (petition for review); Attempted first-degree murder

Patrick H. Dunn

[Petition dismissed as improvidently granted; September 17, 2019]

• Failure to instruct on defense of person
• Failure to instruct on lesser-included offense

State v. Ken 'Dum Owens, No. 115,441 (Sedgwick)

Direct appeal (petition for review); Agg robhery/criminal use of weapon

Clayton J. Perkins

[Affimed; Luckert; November 1, 2019]

• Constitutional speedy trial violation

PSI insufficient to determine if out-of-state conviction is person felony

Jennifer C. Roth won in State v. Obregon, No. 117,422 (Kan. June 28, 2019), obtaining a new sentencing hearing in a Geary County drug prosecution.  The KSC applied State v. Wetrich (blogged about here), to hold that a Florida battery conviction may or may not have been comparable to a Kansas person offense. The KSC noted that Florida has two different ways to commit an offense called "battery," one which is like Kansas' and another that is not. In particular, because Florida battery turns on the victim's will, there are some things that would be battery under the Florida statute that would not be a crime in Kansas. The KSC concluded that the record was insufficient to make a final determination:

We should also clarify how this alternative means problem fits within our standard of review for these person-crime classification cases. Typically we describe the classification issue as a question of law, but it is a bit more nuanced because it is the State's burden to prove by a preponderance of the evidence that the defendant committed a crime for which classification is appropriate. And when the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State's burden is to establish that the defendant committed a version of the offense supporting the person classification. 

On appeal, the district court's finding that the State met its crime classification burden must be supported by substantial competent evidence to withstand scrutiny. The presentence investigation summary frequently can satisfy the State's burden absent defendant's objection, but more is required when the summary does not indicate which version of the out-of-state offense the defendant committed.  And failing additional proof, the person-crime classification is erroneous as a matter of law. 

Applying this clarified standard of review, we hold the district court erred in classifying Obregon's Florida battery conviction as a person crime. The PSI report is the only item in the record establishing the conviction as part of his criminal history, and it does not indicate what version of the offense he committed. This means on this record there is not substantial competent evidence to support the district court finding that Obregon committed a Florida offense with a comparable Kansas person crime. And because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich without supporting evidence.

Remand is necessary so the district court can determine the appropriate classification. At resentencing, the State will have the burden to prove Obregon's criminal history by a preponderance of the evidence. 

This is an important holding because, although sometimes a PSI may be specific regarding alternative means from another state, they often are not. This case provides authority for a procedure in cases where a PSI is not sufficiently clear.

The appeal also involved a claim that the district court improperly applied a six-month enhancement for carrying a firearm to commit the crime. Mr. Obregon had pleaded no contest to the drug offenses, but had not stipulated to any facts related to firearms. The COA held that independent findings by the district court violated Apprendi v. New Jersey. The KSC held that, because special verdicts are not generally appropriate in Kansas, remand for a trial on that fact at this point in the procedural posture of the case was not possible.

Profanity-laced threat from officer renders confession involuntary

Thomas J. Bath won in State v. Guein, No. 115,426 (Kan. June 28, 2019), obtaining a suppression order in a Johnson County distribution prosecution. The charges stemmed from interactions between Lenexa police officers and Mr. Guein in what they believed was a high-drug-crime area. The district court had suppressed several statements made after Mr. Guien was handcuffed but before he was given Miranda warnings. But the district court admitted several statements made before officers handcuffed Mr. Guein and statements made after the Miranda warnings. A majority of the COA held that the district court erred by denying Mr. Guein's motion to suppress the post-Miranda statements, but upheld the admission of the statements made before being handcuffed. The KSC granted both the state's petition for review and Mr. Guein's cross-petition for review.

With regard to the statements made before being handcuffed, the KSC went through a detailed analysis of the factors used to determine whether a reasonable person would feel free to terminate the interrogation and disengage from the encounter. 

We acknowledge Guein's subjective beliefs are not part of the legal analysis to determine if the interrogation is custodial or investigative. But we observe, among other things, he testified he changed from denying—to admitting—to Weber that he had marijuana because his "pockets were empty and [he] was still in a state where [he] wasn't free to go." He further testified he believed Weber was going to search him anyway, and he did not feel he had the option of not answering his questions. He also testified that during the encounter he feared for his physical safety. 

More to the dispositive analytic point, however, after our de novo review we conclude a reasonable person in Guein's position would have held the same beliefs—that he or she was not free to terminate the interrogation and disengage from the encounter. In short, we conclude nearly every factor listed in [State v. Lewis, 299 Kan. 828, 326 P.3d 387 (2014)] leads to the conclusion that the interrogation was custodial. We specifically disagree with any panel suggestion that Guein was not "'subjected to restraints comparable to those associated with a formal arrest.'" So Weber should have given Guein Miranda warnings before questioning him.

Therefore the KSC held that the statements made before being handcuffed should have been suppressed. The KSC also held that the state had failed to show that Mr. Guein voluntarily spoke to officers after the provision of Miranda warnings, particularly in light of profane language used by the officer:

We conclude, like the majority, that taken in context, it would not be unreasonable for a person to have determined Weber made an implied threat that was connected to answering the questions in the way he wanted.

En route to this conclusion, for several reasons we specifically reject the State's related argument that Guein, as a college-educated man who brought a gun with him to a meeting where he intended to sell marijuana, would not have been affected by the use of Weber's language. First, profanity is often used for emphasis and reinforcement. So we agree with the panel majority that its use here "amplified the serious nature of the statements being made, as the use of any particularly strong language, forcefully said, might do." 

Second, we note how context changes the use of language and its connotations. For example, we contrast the title of the popular movie "Whiskey Tango Foxtrot" (and what the military's phonetic "Foxtrot" stood for there, i.e., "What the fuck?"), with an armed police officer's instruction to an arrestee: "Don't fuck around with me and I ain't gonna fuck around with you, okay? You hear me?" and, "Don't fuck with me, okay? You hear me?" And consider the language is directed to an arrestee cuffed from behind and being walked across the parking lot of a closed business to the officer's patrol car at 1:30 a.m.—when eyewitnesses are unlikely. 

. . . .

Here, we have an armed officer during a walk and talk who twice essentially tells an arrestee (handcuffed behind his back) "[d]on't fuck with me"—when I "ask you some questions here in a little bit" because "I know what you're doing out here [a drug deal]" and "I'm telling you right now, I know what's going on, all right?" The arrestee is then immediately placed alone in a patrol car to think about what this meant—for a yet-to-be determined amount of time. His contemplation is followed 10 minutes later by a rapid, dismissive reading of the Miranda warning—including Guein's right to remain silent— that the officer says "I've gotta" give. This sequence indicates that arrestee Guein had better not be silent because that would show he was "fuck[ing] around" and not "be[ing] honest" with Weber who twice told Guein he knew why Guein was there. Right after being Mirandized, Guein agreed to talk. So we agree with the panel majority that Weber's language implied physical violence toward Guein, prompting his later incriminating statement. 

So Mr. Guein's post-Miranda statements are also suppressed.

Justice Johnson to retire

Here is a court press release announcing that Justice Lee Johnson will retire on September 8, 2019. He has served on the Kansas Supreme Court since 2007 and before that on the Kansas Court of Appeals since 2001.This will trigger the nomination process set forth in the Kansas Constitution utilizing the Supreme Court Nominating Commission to forward nominees to the Governor.

[Update: here is a blog post reporting the short list from the Nominating Commission for this vacancy.]

[Further update: here is a blog post reporting the Governor's selection of Chief Judge Evelyn Wilson to fill this vacancy.]