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

The case involved the defendant's appeal of his conviction for felony possession of marijuana, enhanced from a misdemeanor based on a prior violation, along with further sentence enhancement under the Habitual Criminal Act following a jury trial. The court affirmed the conviction, holding that circumstantial evidence linking the defendant to marijuana paraphernalia found in his trailer was sufficient for a rational factfinder to conclude guilt beyond a reasonable doubt, with the jury properly resolving conflicts in testimony. The court vacated the sentence as illegal because the trial court had improperly tripled the maximum term under the Habitual Criminal Act rather than doubling it and remanded for resentencing consistent with the statutory limits.

criminal law

The case involved property owners (the Wunschels) who leased an inn to Holmes under an agreement requiring him to obtain casualty insurance naming the owners as loss payees; after storm damage, the insurer (TIC) paid the claim proceeds solely to Holmes, who did not repair the property. The owners sued TIC for breach of the policy's loss payable clause, but the trial court granted summary judgment to TIC on grounds including lack of privity and the owners' release of claims against Holmes. The appellate court reversed and remanded, holding that the named loss payees had standing to sue TIC directly as third-party beneficiaries of the insurance contract, with rights independent of the insured's liabilities or any release.

propertybusiness & regulatory

The case involved Edward Holloman's appeal of his robbery conviction from the robbery of a Gap store, where he argued that the court should have suppressed an eyewitness identification because police procedures were impermissibly suggestive, that the failure to give a lesser-included-offense instruction and a separate alibi instruction required reversal, and that the evidence was insufficient to support the conviction. The court affirmed the conviction, finding that the identification procedures did not create a substantial likelihood of irreparable misidentification under the totality of the circumstances, that the instructions given adequately covered the elements of the crime and the state's burden of proof beyond a reasonable doubt so no separate alibi instruction was required, and that the evidence viewed in the light most favorable to the prosecution was sufficient for a rational jury to find guilt. The core reasoning relied on the two-step test for suggestive identifications from Simmons and Neil v. Biggers factors, Kansas precedent on jury instructions, and the sufficiency standard from State v. Graham.

criminal lawprocedure

This case involved the conviction of Muryel Josenberger for the sale of marijuana after he was observed delivering a bag of marijuana during a transaction arranged with undercover officers. Josenberger appealed, arguing double jeopardy from the trial court's decision to instruct on the lesser offense of simple marijuana sale after dismissing the enhanced charge for proximity to a school, along with errors in refusing instructions on mistake of fact and compulsion defenses. The court affirmed the conviction, concluding that instructing on the lesser included offense did not violate double jeopardy, the evidence did not support the requested defense instructions given the defendant's role in the transaction, and the instructions provided sufficiently addressed the required mental state for the crime.

criminal law

This case is a direct appeal by Dwight L. Almond from his conviction for operating a motor vehicle while under the influence of alcohol after a one-car accident. The defendant sought to suppress his statement admitting he had been drinking and the results of his breathalyzer test on the grounds that he received no Miranda warning before the officer's questioning in the patrol car or the test itself. The court affirmed the conviction, concluding there was no reversible error because the officer's inquiries while completing the required accident report did not amount to custodial interrogation triggering Miranda protections, and an officer's request for a breathalyzer test likewise does not constitute custodial interrogation. The court further held that the State laid a sufficient foundation for admitting the test results through testimony on the machine's operation, certification, and procedures.

criminal lawprocedure

In State v. Pichon, defendant Douglas Pichón, a convicted felon, appealed his conviction for aggravated escape from custody after fleeing a supervised volleyball outing and remaining at large, raising a compulsion defense based on fear of harm from a former associate. The district court excluded testimony from four proposed defense witnesses as irrelevant and the jury convicted him. On appeal, the Kansas Supreme Court affirmed, holding that the compulsory process right does not require admission of irrelevant evidence and that the evidence was sufficient to prove Pichón remained in lawful custody and did not surrender after any immediate threat ended.

criminal lawprocedure

The case concerned the estate of Chester D. Crawshaw, who left the bulk of his residuary estate in a testamentary trust to Marymount College for loans to nursing students, with a 15% share to the Salvation Army; after the college closed shortly after Crawshaw's death, the trial court applied the cy pres doctrine under K.S.A. 59-22a01 to redirect the funds to a successor trustee for similar educational purposes. The Salvation Army appealed, contending that the will's language reflected a specific intent limited to Marymount College rather than a general charitable intent. The court affirmed the trial court's ruling, finding that Crawshaw's dominant purpose was to aid students generally, as evidenced by the lack of any personal connection to the college and provisions allowing loans to other students if needed, and that the college's closure rendered the original purpose impracticable, satisfying the statutory requirements for cy pres.

property

In Mid American Credit Union v. Board of County Commissioners, the credit union sued Sedgwick County officials and the Kansas Department of Revenue for negligence after the county treasurer's office failed to note Mid American's lien on a vehicle title application for Christopher Woods, resulting in the lien's omission from subsequent titles and Mid American's inability to recover the vehicle after Woods defaulted. The trial court granted summary judgment to the defendants, finding no duty owed by the treasurer beyond the applicant, that Mid American had not perfected its lien, and that it suffered no damages. The appellate court reversed, holding that K.S.A. 1990 Supp. 8-135(c)(1) imposed a duty on the county treasurer to use reasonable diligence in verifying title applications, extending to lienholders like Mid American; that the treasurer acted as a public employee rather than solely as the applicant's agent; and that Mid American was damaged because its unperfected security interest could not be enforced against subsequent purchasers. The court also affirmed that the Kansas Tort Claims Act did not immunize the defendants and that the KDR was a proper party, remanding for further proceedings on comparative negligence.

torts & liabilitypropertybusiness & regulatory

Dennis Shepherd, an inmate, appealed the dismissal of his habeas corpus petition challenging disciplinary sanctions imposed after a search found a key in his closet leading to discovery of homemade alcohol in another inmate's closet; he was found guilty of possessing unauthorized property and conspiracy, resulting in segregation and transfer. The court reversed the dismissal and remanded for further hearing, concluding that the petition stated due process claims because the hearing denied Shepherd the opportunity to call a key witness without providing the required explanation and failed to give an adequate statement of the evidence and reasoning supporting the findings. The court reasoned that Kansas regulations create a liberty interest in avoiding disciplinary segregation, triggering minimal procedural protections under Wolff v. McDonnell, though no liberty interest was implicated by the transfer itself.

criminal lawcivil rightsprocedure

The case involved Sports, Inc. seeking payment under an irrevocable standby letter of credit issued by Citadel Bank of Wichita to cover unpaid merchandise sales totaling over $45,000 to The Sportshop, Inc. After the bank refused a $25,000 draft in November 1987, the district court found the letter of credit ambiguous and expired, granting judgment for the bank. On appeal, the court interpreted the letter of credit as an ordinary contract and held its terms clear and unambiguous, providing for automatic one-year extensions from the June 30 expiration date unless the bank gave written notice of nonrenewal at least thirty days prior. Because no notice was ever sent, the letter of credit remained valid at the time of the draft. The appellate court reversed and remanded with directions to enter judgment for Sports, Inc. in the amount of $25,000 plus interest.

business & regulatory

The case involved defendant Vernon L. Lieurance's direct appeal of his conviction for driving under the influence under K.S.A. 1987 Supp. 8-1567(a)(1), with a breath test result of .234. Lieurance challenged the complaint's validity because it was sworn before a notary rather than a judge, argued violations of statutes requiring prompt appearance before a judge after arrest, claimed a lack of post-arrest probable cause determination under the Fourth and Fourteenth Amendments, and contested the admission of Intoxilyzer certification documents and test results at trial. The court affirmed the conviction, holding that state statutes permit oaths before notaries and do not require swearing or filing before a judge in this context, that any delay in judicial appearance was harmless given the defendant's prompt release on bond, that public-place arrests with probable cause need no prior judicial finding, and that the trial court properly admitted the evidence based on the deputy's testimony establishing the documents' authenticity and the machine's certification and use procedures.

criminal lawprocedure

This case is an interlocutory appeal by the State from a trial court order suppressing the defendant's breath alcohol test results in a DUI prosecution. The defendant claimed he twice requested an independent blood test that the officer refused, while the officer testified the defendant made no such request; the trial court suppressed the evidence because the officer did not affirmatively ask about an independent test and create a written record of the answer. The appellate court reversed, ruling that K.S.A. 8-1001 and 8-1004 require only that officers provide specific oral and written notices before testing and do not impose any additional duty to inquire or document requests for independent testing. The court held that judges lack authority to add statutory requirements beyond those enacted by the legislature, and it remanded for reconsideration of the suppression motion under existing statutory and evidentiary rules.

criminal lawprocedure

In Miller v. Alexander, the plaintiff sought specific performance of an option (characterized as a preemptive right) to purchase five acres of land for $2,500 under a recorded 1970 contract for deed originally executed by Mac and Mary Alexander; after Mary Alexander sold the land to the Barlow defendants in 1983 without providing the required notice, the plaintiff sued both parties. The trial court denied specific performance, holding that the Barlows were bona fide purchasers without actual or constructive notice due to an error in the contract's section number. The appellate court reversed, concluding that the recorded contract and correcting affidavit provided constructive notice, the Barlows therefore were not bona fide purchasers, and the preemptive right ripened into an enforceable contract right upon the seller's decision to sell. The court relied on Kansas precedent holding that specific performance of a real estate purchase right is available against subsequent purchasers with notice and ordered the trial court to grant specific performance to the plaintiff.

property

This case concerned whether a former husband's Individual Retirement Account could be liquidated to satisfy unpaid maintenance, attorney fees, and other financial obligations owed to his ex-wife under their divorce decree. The trial court ordered the IRA proceeds to be used for these payments, but the husband appealed, claiming an exemption under K.S.A. 1988 Supp. 60-2308(b). The court affirmed the order only for unpaid maintenance, holding that the statute's exemption for retirement plans does not apply to claims for spousal support even without a qualified domestic relations order, as the legislature did not intend to shield assets from such family obligations. It reversed the order for attorney fees and other debts, finding those obligations fell under the exemption since they were not classified as maintenance. The decision turned on statutory interpretation of the Kansas exemption provisions and their interaction with federal IRA rules.

family lawproperty