Thomas E. Malone

In Bolton v. Kansas Department of Revenue, Gary Bolton appealed the administrative suspension of his driver's license after a breath test on an Intoxilyzer 8000 recorded a blood-alcohol level of .246, contending that the test failed to substantially comply with Kansas Department of Health and Environment procedures because he wore dentures during the required 20-minute observation period. The Kansas Court of Appeals affirmed the suspension, ruling that the testing substantially complied with the protocols. The court reasoned that "oral intake" refers to taking something in during the observation window, and Bolton's dentures had already been in place beforehand with no evidence they affected the result; the officer had kept Bolton under continuous observation for 22 minutes without any new substances entering his mouth.

criminal lawprocedure

In State v. Dunlap, the defendant was convicted by jury of aggravated robbery and felony obstruction of official duty after evidence showed he robbed a convenience store clerk at gunpoint, was identified by the victim and a getaway driver, admitted his involvement after viewing surveillance footage, and was apprehended shortly afterward with incriminating items. The sole issue on appeal was whether the trial judge's failure to ask the jury, as required by K.S.A. 22-3421, whether the verdict read in open court was their own required reversal. The Kansas Supreme Court affirmed the convictions on two alternative grounds. First, defense counsel declined the court's offer to poll the jury, which would have served the same purpose of confirming the verdict, so the claim was waived or barred by invited error and could not be raised for the first time on appeal. Second, any statutory violation was subject to harmless-error review and did not affect Dunlap's substantial rights, given the overwhelming evidence of guilt, the jury's brief 21-minute deliberation, and the absence of any indication that the verdict was not unanimous.

criminal lawprocedure

Bohanon, an inmate at a Kansas correctional facility, was found guilty of battery and disobeying orders in two disciplinary cases after hearings at which he participated but did not raise any notice issue. He later filed a petition for writ of mandamus alleging he had not received the required 24-hour advance written notice of the hearings under K.A.R. 44-13-401(b) and seeking removal of the disciplinary findings from his record. The district court granted summary judgment to the Secretary of Corrections, and the Court of Appeals affirmed, holding that mandamus was not available because an adequate remedy existed under the habeas corpus statute, K.S.A. 60-1501, which Bohanon had not pursued. The court further held that Bohanon had waived objections to venue transfer and failed to preserve claims of judicial misconduct for appeal.

criminal lawprocedurecivil rights

This case involved homeowners who sued a building company for construction defects in their new home, alleging breach of contract for failing to build in a workmanlike manner and violations of the Kansas Consumer Protection Act for not disclosing budget overruns, while also seeking to hold the company's owner and a related subcontractor personally liable under alter-ego and fraud theories. The district court found the builder liable for contract breaches and KCPA violations, awarding damages and penalties, but rejected alter-ego and fraud claims. On appeal, the Kansas Court of Appeals vacated the contract damages award because the lower court used an incorrect measure that failed to properly calculate expectation damages and remanded for recalculation, while affirming the KCPA penalty award alongside contract damages, the rejection of alter-ego liability, and the dismissal of fraud claims under the economic-loss doctrine. The court reasoned that the KCPA election-of-remedies provision does not bar recovery of common-law contract damages, that the builder's conduct was unconscionable due to deception and power imbalance, and that other claims lacked sufficient evidence or were not properly preserved.

business & regulatorypropertytorts & liability

This case involved a workers' compensation dispute where teacher Rozanne Siler, injured by lightning while working, settled her claim in 2007 with future medical treatment left open. After the employer sought to discontinue her psychotherapy based on an independent evaluation, an administrative law judge issued a preliminary order directing the treatment to end per the evaluator's plan. Siler appealed to the Workers Compensation Board, which upheld the ALJ's jurisdiction and dismissed her review request. The court dismissed Siler's further appeal, holding that under K.S.A. 44-534a, preliminary orders on future medical treatment are not final, not appealable, and within the ALJ's authority without modifying the settlement award. The court reasoned that the statutes expressly limit review of such non-binding preliminary findings, leaving Siler free to seek additional treatment orders later.

labor & employmentprocedure

Donald Wayman, a guest at a Motel 6 in Manhattan, Kansas, was struck and injured by a car driven by the motel's intoxicated general manager, Frederick Ristow. Wayman sued Accor North America (the motel operator) for vicarious liability based on Ristow's negligence and for direct negligence in hiring, retaining, and supervising Ristow. The district court granted summary judgment to Accor on both claims, and the appellate court affirmed. The court reasoned that Ristow was not acting within the scope of employment when he drank at a tavern for personal reasons even though he was on call, and that Accor had no knowledge of any propensity by Ristow to drive while intoxicated so as to support the direct negligence claims.

torts & liabilitylabor & employment

The case involved Tracy Thompson, who was charged with DUI, speeding, and related offenses in Kansas. After a bench trial presided over by a district judge (due to the magistrate's illness), Thompson was convicted, and a magistrate judge later imposed the sentence. Thompson sought to appeal to the district court for a jury trial, but the district court dismissed the appeal for lack of jurisdiction. The appellate court reversed this dismissal, holding that because the final judgment (including sentencing) was entered by a magistrate judge, Thompson had a statutory right to appeal to the district court for a de novo trial.

criminal lawprocedure

In State v. Edgar, the defendant was convicted of felony DUI after a traffic stop where an officer smelled alcohol, learned the defendant had been drinking, administered field sobriety tests (which the defendant largely passed), and then requested a preliminary breath test (PBT) that showed a blood alcohol level of .122, followed by a blood test confirming .10. The defendant moved to suppress the PBT and blood test results, arguing the officer lacked reasonable suspicion to request the PBT after the field tests and that his consent to the PBT was involuntary because he was told he had no right to refuse. The court held that reasonable suspicion for the PBT persisted based on the initial observations of alcohol odor and admission to drinking, that any deficiencies in the implied consent notice did not invalidate the test under the governing statute, and that the conviction should stand. However, the court reversed the assessment of attorney fees to the Board of Indigents' Defense Services because the sentencing court failed to determine a specific amount after considering the defendant's finances, and it remanded for that determination.

criminal lawprocedure

Vanum Construction Company sued Magnum Block for breach of contract, negligence, and breach of implied warranty after discovering cracks in a retaining wall that Magnum had built as a subcontractor. Magnum denied liability and filed a counterclaim for unpaid amounts due under the contract. A jury found for Magnum on all claims, but the trial court later granted Vanum judgment as a matter of law on the counterclaim, ruling that Magnum had failed to satisfy the contract's mediation clause, which made mediation a condition precedent to legal proceedings. The appellate court reversed, concluding that the clause's plain language placed the burden of initiating mediation on the party starting litigation and did not require a defendant to mediate a compulsory counterclaim asserted after suit had already begun.

business & regulatoryprocedure

The case involved Jason and Phyllis Eastham, who stopped making mortgage payments shortly after purchasing their home, leading Wells Fargo Bank to obtain a foreclosure judgment. The Easthams counterclaimed that Wells Fargo, as an assignee of the original lender, was liable for violations of the Truth in Lending Act's disclosure requirements, specifically the timing of providing the disclosure statement at closing. The district court granted summary judgment in favor of Wells Fargo, and the appellate court affirmed this decision. The court reasoned that assignees are not liable for the original lender's TILA violations unless they are apparent on the face of the disclosure statement, and a timing violation does not qualify as such a facially apparent issue under the statute.

propertybusiness & regulatory

In State v. White, the defendant appealed his convictions for felony possession of marijuana and possession of a controlled substance without a tax stamp, claiming that evidence should have been suppressed because his consent to a vehicle search during a traffic stop was involuntary and because an officer's pat-down search was unlawful. The Kansas Court of Appeals reversed the convictions and remanded with directions to grant the motion to suppress. The court held that the pat-down violated the Fourth Amendment and the Kansas Constitution Bill of Rights, as the officer performed it as a routine practice without articulating any reasonable suspicion that the defendant was armed or posed a danger. Because the marijuana was discovered during the unlawful pat-down and other evidence was obtained as a result, all of it was inadmissible under the exclusionary rule and the fruit of the poisonous tree doctrine.

criminal lawcivil rights

In State v. McMillan, the defendant was convicted by a jury of intentional second-degree murder after his neighbor was found stabbed 56 times, along with misdemeanor charges for possession of marijuana and drug paraphernalia based on items found in a locked box in his home. On appeal, McMillan raised multiple claims including prosecutorial misconduct during closing arguments, improper exclusion of hearsay testimony, failure to give certain jury instructions on voluntary intoxication and nonexclusive possession, and unconstitutional sentencing based on his criminal history. The Kansas Court of Appeals affirmed the convictions, holding that references to high-profile shootings were not improper when used to illustrate that motive need not be proven, that some jury instructions were erroneous but the errors were harmless because they did not affect the verdict, and that the remaining claims lacked merit or were waived. The court concluded that the trial evidence and jury deliberations supported upholding the convictions despite the identified issues.

criminal lawprocedure

In State v. Baber, the defendant pleaded no contest to aggravated indecent liberties with a child and aggravated indecent solicitation of a child and received consecutive prison terms plus lifetime postrelease supervision. Baber moved for a dispositional departure and argued that the mandatory lifetime term under K.S.A. 22-3717(d)(1)(G) was cruel and unusual punishment under the federal and state constitutions because more serious offenses carried shorter supervision periods, and that a general 36-month term under K.S.A. 22-3717(d)(1)(A) could apply instead. The district court rejected the constitutional challenge as a legislative matter and imposed the lifetime term; on appeal the Court of Appeals affirmed, holding that the specific statute for sexually violent crimes controls, that any other term would be illegal, and that the punishment did not shock the conscience or violate constitutional limits.

criminal law

The case involved Kristina Bishop, who was charged with third-offense DUI, a felony, based on two prior diversion agreements including one from 2002 when she was 16 years old. Bishop moved to dismiss the charge, arguing that the 2002 diversion agreement was a voidable contract due to her minority status and could not be used to enhance the current offense. The district court denied the motion, and after a bench trial on stipulated facts, convicted her as charged; she appealed the ruling on the prior diversion. The appellate court affirmed, reasoning that Kansas statutes treat diversion agreements as prior convictions for DUI sentencing purposes, that minors' contracts are binding unless disaffirmed within a reasonable time after reaching majority (which did not occur here, as Bishop waited nearly six years), and that no legal bar prevented counting the agreement despite her age at the time.

criminal law

In State v. Galyardt, the defendant appealed his aggravated burglary conviction, arguing that the trial court should have suppressed evidence from a vehicle search conducted by a Pratt police officer outside his jurisdiction in Stafford County and suppressed an eyewitness identification made during a one-man show-up, and that the jury instruction on eyewitness identification was clearly erroneous. The court held that Officer Humble was in fresh pursuit of the suspect under K.S.A. 22-2401a, which authorized the extraterritorial arrest and search incident to arrest. It further concluded that the identification procedure was not impermissibly suggestive and that the PIK Crim. 3d 52.20 instruction, including the witness certainty factor, was not clearly erroneous under existing Kansas Supreme Court precedent. The court affirmed the conviction and sentence.

criminal lawprocedure

The case involved Tharin Deist appealing the district court's calculation of his criminal history score after he pled no contest to one count of failure to register as a sex offender under K.S.A. 22-4903. The presentence investigation report listed two prior convictions for aggravated indecent liberties with a child from the same case, and the district court excluded only one from the score on the ground that it was an element of the current offense while using the second to classify the score as B. Deist contended both priors should be excluded because each triggered the registration requirement. The Court of Appeals affirmed, reasoning that the Kansas Offender Registration Act requires only a single qualifying conviction to classify a person as an offender and impose the duty to register, so only one prior conviction constitutes an element of failure to register while the other remains available for criminal history scoring under K.S.A. 21-4710.

criminal lawprocedure

The case involved Travis Gunner Long's appeal of his sentence for possession of methamphetamine, challenging the inclusion of three prior uncounseled misdemeanor battery convictions in his criminal history score. The court decided that these prior convictions violated Long's Sixth Amendment right to counsel because they resulted in probation without counsel or waiver, and therefore could not be used in calculating his criminal history. The reasoning relied on precedent holding that a sentence including probation constitutes a term of imprisonment triggering the right to counsel at adjudication, even if no actual jail time was served, leading to vacating the sentence and remanding for resentencing without those convictions.

criminal law

In State v. Diaz-Ruiz, Kansas authorities appealed a district court order suppressing marijuana evidence found during a vehicle search after a traffic stop on Interstate 70. The stop began when a trooper observed a ladder in the truck bed that appeared unsecured, but after checking the ladder and determining it was stable, the trooper continued questioning the defendants about their travel plans, ran a license check revealing a suspended license, and obtained consent to search without issuing any citation. The Court of Appeals affirmed the suppression, holding that the stop's scope was unlawfully extended beyond its original purpose once the ladder concern was dispelled and that the defendants' consent to the search was not sufficiently attenuated from the prior illegal detention to purge its taint. A concurring opinion emphasized that the initial consent to further questioning was also involuntary due to the ongoing unlawful detention.

criminal lawprocedure

The case concerned a state appeal from a district court's order suppressing evidence found during a warrantless parole search of Michael Haffner's home. Haffner, on parole after methamphetamine-related convictions, had signed conditions allowing searches upon reasonable suspicion of a parole violation; officers conducted the search after his positive urine test for amphetamines and two anonymous tips about possible methamphetamine manufacturing at his residence. The district court found the search lacked reasonable suspicion and suppressed the resulting evidence, including drugs and a firearm. The appellate court reversed, concluding that the positive test and tips together provided adequate reasonable suspicion to justify the parole search under diminished privacy expectations for parolees, and remanded for further proceedings.

criminal lawprocedure

In State v. Miller, the defendant appealed his convictions for rape, aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child, stemming from allegations that he sexually abused a four-year-old girl while staying at her family's home. The trial court admitted the child's out-of-court statements to family members and a nurse examiner under a hearsay exception after finding the child unavailable to testify, denied suppression of the defendant's confession, and proceeded with a second trial following a mistrial in the first. On appeal, the court affirmed the convictions, holding that the statements were properly admitted as nontestimonial or that any confrontation clause violation was harmless, the confession was voluntary, and other claims like cumulative error lacked merit. It dismissed the sentencing appeal for lack of jurisdiction over a presumptive guidelines sentence and rejected challenges to the use of criminal history under Apprendi precedent.

criminal lawprocedure