Robert E. Davis

This case involves David D. Lewis appealing his convictions for aggravated robbery, aggravated burglary, and kidnapping stemming from an incident in which he and an accomplice forced entry into an apartment, confined the victim at gunpoint, took items including a wallet and watch, and threatened him before fleeing. The court reversed the convictions and remanded for further proceedings solely on the ground that the trial court erred in determining the defendant had placed his character in issue, thereby permitting the State to introduce evidence of his prior burglary, theft, and worthless-check convictions. The opinion addressed but did not resolve the remaining claims concerning the prosecution's references to the defendant's post-Miranda silence and the sufficiency of evidence supporting the kidnapping conviction under Kansas precedent requiring confinement that facilitates the underlying crime or reduces detection risk.

criminal lawprocedure

The case involved Robert Mixon, who was serving a work-release sentence through a correctional facility when he left his job site, failed to return, and was later apprehended in Texas; he was charged with and convicted of aggravated escape from custody after electing to represent himself at trial with standby counsel. On appeal, Mixon contended that the trial court failed to ensure a valid waiver of counsel, improperly excluded some of his proposed defense witnesses as irrelevant, and gave an erroneous jury instruction that omitted the element of lawful custody. The Kansas Court of Appeals affirmed the conviction, reasoning that Mixon’s mid-trial request for self-representation was granted after an adequate colloquy confirming it was knowing and intelligent, that the trial court did not abuse its discretion in limiting cumulative or irrelevant testimony, and that the instruction followed the statute and pattern instructions because the lawfulness of custody is a preliminary legal determination for the judge rather than a jury question.

criminal lawprocedure

In State v. Harris, the defendant was charged with second-degree murder after evidence showed he left a party with the victim, abandoned the victim's blood-stained car while fleeing police, and had blood matching the victim's on his clothing and gloves; he was convicted of the lesser-included offense of voluntary manslaughter. On appeal, Harris challenged the sufficiency of the evidence to support the heat-of-passion element and the trial court's ruling that a witness was unavailable, allowing use of his preliminary hearing testimony. The court determined that the evidence was insufficient to prove sudden quarrel or heat of passion based on legally adequate provocation, as words alone and conflicts involving third parties do not qualify and there was no indication of heightened emotion between Harris and the victim, but found the evidence sufficient for second-degree murder so denial of acquittal was proper, and held the unavailability finding was not an abuse of discretion. The conviction was affirmed.

criminal law

In State v. Rodriguez-Garcia, the defendant appealed his convictions for aggravated burglary, attempted theft, and criminal damage to property after an earlier reversal of his convictions due to prosecutorial misconduct. He argued that his statutory speedy trial rights under K.S.A. 22-3402 had been violated by the timing of the retrial and that the trial court erred in admitting the victim's prior preliminary hearing and trial testimony while excluding her later sentencing statements. The court held that the speedy trial period was properly extended by up to 30 days due to the trial court's docket congestion, as permitted by statute, and that no explicit findings were required. However, it reversed the convictions because the State failed to present any evidence, beyond counsel's assertions, establishing the victim's unavailability with due diligence, which is required before admitting prior testimony under K.S.A. 1998 Supp. 60-460(c). The case was remanded for further proceedings.

criminal lawprocedure

Dimension Graphics sued agents Liebowitz and Jacobson for payment on a printing contract after obtaining an unsatisfied judgment against the principal, Paradise Magazine (doing business as Worldwide Communications). The trial court dismissed the suit, ruling that Dimension's judgment against the undisclosed principal barred further claims against the agents under agency law principles of election. The appellate court reversed, holding that the principal was partially disclosed because Dimension had notice of agency but not the principal's identity, making the agents jointly liable parties to the contract whose liability was not discharged by the unsatisfied judgment. The court further reasoned that the federal district court's characterization of the principal as undisclosed had no res judicata or judicial notice effect here, as the agents were not parties to that action and no estoppel applied.

business & regulatoryprocedure

In State v. Little, the defendant appealed his convictions for aggravated kidnapping, kidnapping, aggravated robbery, aggravated burglary, and criminal possession of a firearm arising from a 1997 home invasion in Salina where he and accomplices posed as a community corrections officer to gain entry, restrained the victims including children, and stole cash and valuables. The Kansas Supreme Court affirmed the convictions, holding that the trial court did not err in refusing to instruct on criminal restraint as a lesser included offense or to define facilitation, that the evidence supported the kidnapping charges, and that modifying the complaint and jury instruction on aggravated robbery during deliberations to conform to the evidence was permissible without prejudicing the defendant. The court reasoned that the restraint went beyond what was incidental to the robbery, the instructions accurately stated the law, and the lack of objection to the amendment barred later challenges under K.S.A. 22-3201(e).

criminal lawprocedure