Marla J. Luckert

Vernon Ray Gilliland was convicted by a jury of aggravated criminal sodomy with a child under 14, an off-grid felony under Jessica’s Law requiring a life sentence. On appeal he challenged the denial of motions to suppress his statements and jail recordings, the exclusion of evidence under the rape-shield statute, the refusal to hold a taint hearing on the victim’s testimony, the giving of an Allen-type instruction, and cumulative error; the Kansas Supreme Court rejected each claim and affirmed the conviction. Separately, the sentencing court denied a departure motion yet imposed a term-of-years sentence under the guidelines rather than life imprisonment, producing an ambiguous and illegal sentence inconsistent with both the statute and the court’s own findings. The court therefore vacated the sentence and remanded for resentencing, leaving the remaining sentencing issues unaddressed as not yet ripe.

criminal lawprocedure

This case arose as an interpleader action over rights to half of a real estate brokerage commission ($13,802.91) from a residential sale, with listing broker Reece & Nichols Realtors (RAN) refusing to split it with Patrick McGrath, the buyer's agent. McGrath, a licensed Kansas attorney but not a real estate licensee under the Kansas Real Estate Brokers’ and Salespersons’ License Act (KREBSLA), claimed an attorney exemption from the Act’s prohibition on commission-splitting with nonlicensees; RAN argued the exemption did not apply. The district court granted summary judgment to RAN, and the Kansas Supreme Court affirmed. The court held that the attorney exemption under K.S.A. 2011 Supp. 58-3037(c) applies only when an attorney primarily performs services within the practice of law in an attorney-client relationship and consistent with professional duties; here, the commission was earned by producing a ready and willing buyer through brokerage activities, not primarily legal services, and splitting it would conflict with several Kansas Rules of Professional Conduct. Consequently, RAN could not pay McGrath any share of the commission.

business & regulatoryproperty

Alesia Warrior was convicted by a jury of premeditated first-degree murder and conspiracy to commit first-degree murder for the shooting death of her husband, Jeremy Warrior, which occurred while she was driving him to work in 2005; the State alleged she conspired with two others motivated by marital problems and insurance proceeds exceeding $335,000. On direct appeal, Warrior raised multiple claims, including that her hospital statements to police should have been suppressed for lack of Miranda warnings, that the State withheld exculpatory evidence about a key witness’s juvenile record, that hearsay statements by the victim were improperly admitted, that a deadlocked-jury instruction was erroneous, that Kansas’s hard-50 sentencing scheme was unconstitutional, and that cumulative error required reversal. The Kansas Supreme Court rejected each argument and affirmed the convictions and controlling hard-50 life sentence. It held that Warrior was not in custody for Miranda purposes during the hospital interviews, that any nondisclosure or evidentiary errors were harmless or cumulative of other evidence, that the jury instruction and sentencing statute were lawful, and that the overall evidence—telephone records, neighbor observations, forensic details, and the codefendant’s testimony—was strong enough that the asserted errors did not affect the outcome.

criminal lawprocedure

In Aeroflex Wichita, Inc. v. Filardo, Aeroflex sued two former employees and TIC (an out-of-state company) for breach of nondisclosure agreements, misappropriation of trade secrets, tortious interference, and civil conspiracy, alleging that TIC hired the employees to obtain proprietary information and win a U.S. Army contract previously held by Aeroflex. After limited discovery but without an evidentiary hearing, the district court granted TIC’s motion to dismiss for lack of personal jurisdiction. The Kansas Supreme Court reversed, holding that a plaintiff facing such a motion need only make a prima facie showing of jurisdiction, with factual disputes viewed in the light most favorable to the plaintiff; under that standard, Aeroflex’s evidence of a conspiracy and related acts in Kansas by coconspirators satisfied both the long-arm statute and due-process requirements of purposeful availment and fair play.

business & regulatoryproceduretorts & liability

Kenneth D. Adams was convicted by a jury of six drug-related counts, including conspiracy to manufacture methamphetamine and possession of lithium metal with intent to manufacture a controlled substance, arising from a search of his home following his housemate’s traffic stop and statements implicating methamphetamine production. On petition for review, the Kansas Supreme Court affirmed the Court of Appeals’ rejection of Adams’ claims that the trial court erred in denying his motion to suppress, gave an improper jury instruction on prior drug use, and improperly used his criminal history at sentencing. The court granted relief on the final claim, however, holding that the elements of possession of lithium metal with intent to manufacture under K.S.A. 2007 Supp. 65-7006(a) are identical to those of possession of drug paraphernalia with intent to manufacture under K.S.A. 2007 Supp. 65-4152(a)(3), as lithium metal qualifies as “materials of any kind” used in manufacturing; therefore, under the identical offense sentencing doctrine and precedent in State v. Snellings, Adams had to be sentenced at the lower severity level 4 rather than level 2. The court vacated that sentence and remanded for resentencing accordingly while affirming the remaining convictions and sentences.

criminal lawprocedure

In State v. Snellings, the Kansas Supreme Court considered a criminal defendant's challenge to the severity levels assigned to two of his drug convictions at sentencing, based on the identical offense sentencing doctrine. Snellings had pleaded no contest to multiple drug charges, including possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance (classified as a severity level 2 drug felony) and manufacturing methamphetamine (classified as a severity level 1 drug felony). The court held that the first offense must be resentenced as a severity level 4 drug felony because its elements are identical to those of the lesser offense of possession of drug paraphernalia with intent to manufacture, requiring application of the lesser penalty when statutes overlap completely. It rejected the second claim, however, finding that the manufacturing statute's elements are not identical to those of the misdemeanor offense of compounding a controlled substance, and it also denied a separate sentencing issue controlled by prior precedent. The case was remanded for resentencing on the ephedrine count only.

criminal law

In State v. Raskie, Jeffrey Raskie was convicted of two counts of aggravated indecent liberties with a child based on allegations that he sexually abused his adopted daughter over several years, including exposing himself, showing pornography, and engaging in sexual contact. On appeal, Raskie raised multiple challenges to his convictions, including the admission of certain evidence, prosecutorial misconduct during closing argument, improper jury instructions, and the denial of his motions for acquittal. The Kansas Supreme Court affirmed the convictions, finding that most evidentiary and procedural claims were either waived or without merit, that any error in the prosecutor’s closing argument was harmless, and that the evidence was sufficient to support the jury’s verdict. Regarding sentencing, the court vacated Raskie’s hard-25 life sentence after concluding that the district court had failed to make adequate factual findings on his claim that the sentence violated the Kansas Constitution’s prohibition on cruel or unusual punishment or the Eighth Amendment. The case was remanded for further proceedings on the constitutional challenge and for resentencing.

criminal lawprocedure

In State v. Jones, Justin Jones pleaded no contest to aggravated indecent liberties with a child and, under a plea agreement, received a 120-month prison sentence after the district court granted his motion for departure from Jessica’s Law’s mandatory life sentence with a 25-year minimum. The Kansas Supreme Court vacated the sentence as illegal and remanded for resentencing. The court reasoned that precedents such as State v. Gracey, State v. Spencer, and State v. Jolly require a sentencing court to first depart to the applicable Kansas Sentencing Guidelines grid box before granting any further departure, steps the district court did not explicitly take. It further held that a defendant cannot consent to an illegal sentence, rendering the plea agreement irrelevant to the illegality. Jones’s separate challenge to lifetime postrelease supervision was deemed moot because the underlying sentence was vacated.

criminal lawprocedure

In State v. Miller, Saul Arthur Miller was convicted after a second trial of rape, aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child, based on allegations that he sexually assaulted his four-year-old neighbor N.A. during an overnight visit; the first trial had ended in a mistrial due to repeated violations of a pretrial order limiting the victim’s statements. On appeal, Miller raised multiple claims, including that the retrial violated double jeopardy, that the child victim was improperly disqualified as a witness, that statements N.A. made to a sexual assault nurse examiner (SANE) were admitted in violation of his confrontation rights, that prosecutorial misconduct and cumulative error denied him a fair trial, and that sentencing errors occurred. The Kansas Supreme Court affirmed the convictions and sentences in full. It held that the SANE statements were nontestimonial—and thus admissible—under the totality of the circumstances because they were made for medical treatment purposes during an examination prompted by the mother’s independent decision to seek care, and it rejected the remaining claims either on the merits or because no error was shown, the sentences were presumptive, or precedent foreclosed review.

criminal lawprocedure

In State v. Bennington, the defendant was convicted of aggravated burglary, aggravated robbery, aggravated kidnapping, rape, two counts of aggravated criminal sodomy, and two counts of criminal use of a financial card after a 2003 sexual assault and robbery of 77-year-old V.B., who died before trial; the case centered on whether statements V.B. made to a sexual assault nurse examiner and her bank could be admitted without violating Bennington’s confrontation rights. The Kansas Supreme Court affirmed the convictions on all counts except the two aggravated criminal sodomy charges, which it reversed, while rejecting claims of prosecutorial misconduct during closing argument and improper sentencing based on prior convictions not proven to a jury. The court reasoned that V.B.’s statements to the SANE were testimonial because they described past events in a non-emergency setting with law enforcement present, rendering them inadmissible under the Confrontation Clause per Crawford v. Washington, but found the bank statements nontestimonial and the constitutional error harmless as to the other counts.

criminal lawprocedure

The case involved Nathan Inkelaar's convictions on multiple counts of rape, aggravated indecent liberties with a child, attempted aggravated indecent liberties, and aggravated criminal sodomy arising from alleged sexual abuse of two young siblings he had babysat. On direct appeal, Inkelaar challenged the admission of K.S.A. 60-455 evidence of prior sexual abuse to prove plan, intent, or absence of mistake; alleged prosecutorial misconduct; argued that the trial court lacked jurisdiction to sentence him under Jessica's Law because the complaint and jury instructions omitted his age; and claimed error in excluding evidence of third-party guilt. The Kansas Supreme Court affirmed the convictions in full, holding that the prior-acts evidence was properly admitted for the stated purposes, any misconduct did not prejudice the jury, the charging defect did not require reversal under the applicable prejudice analysis, and exclusion of the third-party evidence was within the trial court's discretion.

criminal law

In State v. Tully, Michael Tully was convicted of raping 14-year-old A.C. at a party after she became intoxicated; he admitted to intercourse but maintained it was consensual and not accomplished by force or fear. The Kansas Supreme Court granted review after the Court of Appeals affirmed the conviction and reversed both lower courts, holding that three trial errors required a new trial. The court found the State improperly commented on Tully’s post-arrest silence in violation of Doyle v. Ohio, the district court gave an erroneous jury instruction on the “force or fear” element of rape, and the State’s expert exceeded her qualifications by opining on the ultimate credibility issues reserved for the jury. Because the evidence on consent and force was sharply conflicting, the court concluded these errors—considered cumulatively—were not harmless beyond a reasonable doubt and deprived Tully of a fair trial. The case was remanded for retrial.

criminal lawprocedure

The case concerned whether the City of Park City could pursue an untimely appeal from a district court summary judgment ruling in favor of the Board of Sedgwick County Commissioners on a land annexation dispute. After the district court granted several extensions for postjudgment motions under K.S.A. 60-259(f) and later denied the motions as untimely, Park City filed its notice of appeal more than 30 days after the judgment. The Kansas Supreme Court held that the appeal must be dismissed for lack of jurisdiction. It reasoned that appeal deadlines under K.S.A. 60-2103(a) are jurisdictional statutory limits that cannot be extended by a trial court's actions or by the unique circumstances doctrine, following the U.S. Supreme Court's analysis in Bowles v. Russell that courts lack authority to create equitable exceptions to such deadlines. The court therefore overruled prior Kansas precedents allowing the doctrine in jurisdictional settings.

procedureproperty

In State v. Roberts, the defendant was charged with felony possession of hydrocodone under K.S.A. 2007 Supp. 65-4160(a) after being found with one tablet of generic Lortab, a schedule III controlled substance, without a prescription. The district court granted Roberts' pretrial motion to dismiss, ruling that the statute applied only to schedule II substances and did not cover the drug at issue, and it denied the State's request to amend the complaint to a felony. The Kansas Supreme Court held that the district court's order was an appealable dismissal rather than a non-appealable judgment of acquittal. The core reasoning was that jeopardy had not attached because the ruling occurred before trial and without the court hearing any witness testimony or other evidence; therefore, double jeopardy principles did not bar the State's appeal under K.S.A. 22-3602(b)(1).

criminal lawprocedure

This case involved Superior Boiler Works suing former business associates Kimball, Stuerman, and FK Company, alleging they intentionally or negligently destroyed company records, including index cards and order sheets, that Superior needed to defend against asbestos litigation. The district court granted summary judgment to the defendants, finding no contract, agreement, voluntary assumption of duty, or special relationship that required preservation of the evidence. On appeal, the Kansas Supreme Court affirmed, declining to recognize a new tort of spoliation of evidence for claims between potential codefendants or indemnitors, based on the precedent in Koplin v. Rosel Well Perforators and various policy concerns such as speculative damages, endless litigation, and interference with property rights.

torts & liability

This case involves Charles Jones's appeal from the summary denial of his motion to correct an illegal sentence, in which he claimed the district court lacked jurisdiction to try and sentence him as an adult for a 1998 first-degree murder because the State and court failed to provide required statutory and constitutional notice to him and his parents under repealed juvenile statutes and In re Gault. The Kansas Supreme Court affirmed the denial, ruling that Jones had not established a basis for an illegal sentence. The court reasoned that prior direct appeal and K.S.A. 60-1507 proceedings had already rejected similar due process challenges to the juvenile waiver, that Kent v. United States rather than Gault governs waiver hearings, and that any notice defects did not deprive the court of jurisdiction.

criminal lawprocedurecivil rights

This case concerned landowners' attempt to rezone approximately 95 acres near the Johnson County Executive Airport from agricultural to planned single-family residential use for a subdivision. The City of Olathe approved the rezoning after public hearings, but Johnson County disapproved it pursuant to K.S.A. 3-307e, which requires both city and county approval for such changes within one mile of the airport. The district court ruled that the County's role was limited to quasi-judicial review and that it had to approve the rezoning unless it proved the City's decision unreasonable. The Kansas Supreme Court reversed, holding that the statute permits the County to make an independent determination that is presumed reasonable, shifting the burden to the landowners to show by a preponderance of the evidence that the County's action was unlawful or unreasonable, and remanded for application of the correct standard.

propertybusiness & regulatory

The case involved Yvonne Ward's appeal of her 14 felony convictions arising from four controlled sales of crack cocaine to a cooperating witness in 2007. Ward challenged the trial court's denial of a mistrial after prosecution witnesses identified two individuals in orange jail jumpsuits as her associates during the transactions, and she also contested the sufficiency of the evidence; on review she raised an additional claim about the proximity of a school to one sale location. The Kansas Supreme Court affirmed the Court of Appeals and the district court, concluding that the trial court did not abuse its discretion in denying the mistrial motion and that the evidence was sufficient to support the convictions. The court declined to reach the school-proximity issue because it had not been presented to or decided by the Court of Appeals. The opinion also clarified standards for applying Kansas harmless-error statutes when potential constitutional errors are at issue.

criminal lawprocedure

This case involved a dispute over 4.5 miles of a former railroad right-of-way in Miami County that had been railbanked under federal law and converted to a recreational trail. The county sought to enforce obligations under the Kansas Recreational Trails Act (KRTA), including notice to adjacent landowners, a development plan, and a performance bond, against the trail operator Kanza Rail-Trails Conservancy. The district court rejected Kanza's claims that the KRTA was preempted by the federal Trails Act, violated the Commerce Clause or equal protection, or exceeded the court's authority to set bond amounts, and it ordered a $9,040 bond. The Kansas Supreme Court affirmed, concluding that the KRTA was consistent with the federal statute's interim-use provisions and did not conflict with federal authority over rail lines or constitutional protections.

federal powerenvironmentproperty

The case concerned whether an appellate court could consider a late appeal from the denial of a K.S.A. 60-1507 postconviction motion when the delay resulted from appointed counsel's failure to file a timely notice of appeal. The Kansas Supreme Court held that jurisdiction should be exercised over the appeal because the movant received ineffective assistance of counsel. The court reasoned that precedents establish a right to effective representation by appointed counsel in such proceedings, and when counsel's deficient performance causes the loss of a timely appeal, the proper remedy is to permit the out-of-time appeal, particularly given the state's stipulation to the facts of deficient performance and resulting prejudice.

criminal lawprocedure