Prosecutors Case Updates

Acquittal, Motion For

Alternative Means

Aggravated Burlary

Appeal, Notice Must be Timely

Appeal, Limited

Appeal, Municipal Appeals

Appeal, Judge Must Advise Defendant of Right To and Time Limit

Attorney-Client Privilege


Bias Crimes

Batson Challenges

Burglary v. Trespass

Cities - Charter v. Regular Ordinance

Charging Discretion

Civil & Criminal Liability

Collateral Estoppel

Competancy, Defendant


Complaints, Defective

Conflict of Interest

Confrontation, Right To

Contemporaneous Objection Rule

Contempt of Court


Costs and Fees

Counsel, Appointed

Counsel, Ineffective

Counsel, Right To

Counsel, Waivers Of

Credibility of Witnesses, Comment On

Cruel & Unusual Punishment


Dismissal with Prejudice


Double Jeopardy

DUI Discovery

DUI Charging

DUI Sentence Enhancement






Habeas Petitions



Invited Error


Jail Time Credit

Judges Role In A Jury Trial

Jurisdiction - Municipal Courts

Jurisdiction and Venue

Jury Instructions

Jury trials; procedures

Jury trial; waiver

Jury Selection

Jury Nullification

Juvenile Offenders

Lab Fee


Multiple Acts (Alternative means)


Objections, Must be Timely and Specific

Ordinance, Interpretation Of

Plea Bargaining

Plea, Judge's Role in Plea Bargaining

Plea, Motion to Withdraw

Prior Convictions

Probation Revocation

Prosecutorial Misconduct

Res Gestae


Selective or Discriminatory Prosecution

Self Representation

Shackles, Use of at Trial


Speedy Trial 

Uncharged Crime

Verdict Forms


Acquittal, Motion For

State v. Murdock, ___ Kan. ___, ___ P.3d ___ (No. 95,365, filed 7/18/08). In an aggravated battery trial, the state produced circumstantial evidence in its case in chief that defendant possessed brass knuckles, the struck the victim in the head causing him to bleed. Defendant moved for acquittal at the close of the state's case, arguing there was no evidence defendant had used a deadly weapon. The prosecutor reviewed the transcript and then moved to reopen his case to introduce testimony about the brass knuckles. The district court allowed it. The Kansas Supreme Court held there was sufficient circumstantial evidence prior to reopening the case to deny the motion for acquittal, and the district court did not err in denying the motion or allowing the prosecutor to reopen the case.

Alternative Means

State v. Shay, ___ Kan.App.2d ___ (No. 118303, filed 02/08/19). Shay, a 49-year old male, forced himself on a 16-year old female. The victim, S.P., testified that she just laid still and did not move because she was "scared." S.P. could feel Shay penetrating her vagina with his fingers. According to S.P., Shay also put his mouth on her vagina. S.P. testified that Shay also unsuccessfully tried to penetrate her vagina with his penis. These activities lasted for about 15 minutes. At trial, Shay testified that the sexual activity was consensual. The jury disagreed and convicted him. Shay alleged on appeal there was insufficient evidence to support his convictions. He does not dispute there was sufficient evidence to prove that each crime was committed while S.P. was "overcome by force or fear." But he claims that because the State failed to present sufficient evidence that S.P. was unconscious or physically powerless, one of the alternative means of committing both charges, both convictions must be reversed. The Court of Appeals agreed with Shay as to his aggravated criminal sodomy conviction. It said allowing a victim's testimony that she was too scared to move to serve as evidence of physical powerlessness would eliminate any distinction between the two alternative means of committing the crime. It reversed Shay's aggravated criminal sodomy conviction and remand for a new trial only on the alternative means supported by sufficient evidence in the first trial, i.e., the crime was committed while S.P. was overcome by force or fear. The State cannot retry Shay for aggravated criminal sodomy committed while S.P. was unconscious or physically powerless because there was insufficient evidence to support that conviction in the first trial, and a retrial on this alternative means is barred by double jeopardy.

State v. Foster, ___ Kan. ___, ___ P.3d ___ (No. 104083, filed 11/15/13, affirming 46 Kan. App. 2d 233, 264 P.3d 116 (2011)). Foster attempted to cash a stolen and forged $350 check at CheckSmart. He alleged that his forgery conviction for issuing or delivering a forged check had to be reversed because the state never introduced evidence that he issued the check. The Supreme Court disagreed. The Kansas Legislature intended to retain the historical character of the crime of forgery when it replaced such words as "uttering or passing" with the words "issuing or delivering" and that it is reasonable to use "offer" in place of "utter." The terms issuing and delivering were not intended to be separate and distinct material elements of the crime, rather, they merely describe the factual circumstances that would prove that the defendant offered a forged document to another, i.e., uttered a forged document. Cf. State v. Ahrens, 296 Kan. 151, 160, 290 P.3d 629 (2012) (terms "operate" and "attempt to operate" in DUI statute merely describe factual circumstances by which material element of driving may be proved). Because the legislature did not intend the phrase "issuing or delivering" in K.S.A. 21-3710(a)(2) to create alternative means of committing the crime of forgery, the district court's inclusion of that phrase in the jury instructions did not create a jury unanimity problem and does not demand application of the super-sufficiency requirement. The scope of the test for evidence sufficiency depends upon whether the jury is instructed that the defendant committed a single offense by one statutory means that is susceptible to being proved in different ways or whether the jury is instructed that the defendant committed a single offense by two or more distinct alternative means by which the legislature has said the crime can be committed. If the jury is instructed on alternative means for a single offense, the record must contain sufficient evidence from which a rational factfinder could have found the defendant guilty on each and every alternative means, i.e., there must be a super-sufficiency of the evidence.

Aggravated Burglary

State v. Daws, ___ Kan. ___, ___ P.3d ___ (No. 108716, filed 02/19/16). There are two ways of committing aggravated burglary under K.S.A. 2015 Supp. 21-5807(b): a person can either "enter into" or "remain within" the dwelling. Michael C. Daws was convicted of aggravated burglary after a homeowner returned to discover the front door kicked in and Daws inside. The jury was instructed it had to find Daws "knowingly entered . . . a residence . . . without authority . . . with the intent to commit theft . . . at the time there was a human being in the dwelling." (Emphasis added.) In other words, the jury was instructed as to the first of the two ways of committing aggravated burglary. Daws argues his conviction should be reversed because the evidence is undisputed that the homeowner was not in the dwelling when he entered it. The Court of Appeals affirmed his conviction based upon its existing caselaw that the victim does not have to be in the dwelling at the time defendant enters it—so long as the victim arrives before defendant leaves. State v. Daws, No. 108,716, 2013 WL 5925960, at *3-5 (Kan. App. 2013) (unpublished opinion), rev. granted January 15, 2015. A majority of this court reverses the aggravated burglary conviction and overrules the line of cases the Daws panel relied on. See State v. May, 39 Kan. App. 2d 990, Syl. ¶ 1, 186 P.3d 847, rev. denied 287 Kan. 768 (2008); State v. Romero, 31 Kan. App. 2d 609, 610-12, 69 P.3d 205 (2003); State v. Fondren, 11 Kan. App. 2d 309, 310-12. 721 P.2d 284, rev. denied 240 Kan. 805 (1986); State v. Reed, 8 Kan. App. 2d 615, 616-19, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983). Under the aggravated burglary statute and these facts, the State should have charged Daws with "remaining within" the dwelling, which it did not do.

Appeal, Notice Must be Timely

State v. Northern, ___ Kan. ___, ___ P.3d ___ (No. 112955, filed 07/22/16). Northern pled guilty to first-degree murder, and the district court imposed a hard 25 sentence from the bench on October 28, 201l, in conformity with the plea agreement. Richard Carney was Northern's attorney during the proceedings. At the sentencing hearing, the State requested that the court "leave open" the matter of restitution until information from the victim's family became available. After pronouncing the terms of incarceration, the court stated, "I will leave the issue of restitution open for a matter of 30 days." The court then informed Northern that he had 14 days in which to file a notice of appeal. No notice of appeal was filed at that time. On November 30, 2011, the district court entered a restitution order in the amount of $1,977.98 to be paid to the parent of the victim. Again, no notice of appeal was filed at the time. Years later, on May 19, 2014, Northern filed a pro se motion seeking leave from the district court to file his appeal out of time. In his motion, he proffered that he had been informed of his right to appeal by the court, that he asked his attorney to take an appeal from the sentence, and that his attorney failed to file a timely appeal. Northern and Carney both testified at a hearing on the motion. The district judge believed the attorney and not Northern and found that Northern had not met the basis of the exceptions under Ortiz and subsequent cases. The court denied Northern's right to appeal out of time. The Supreme Court affirmed.

State v. Webb, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114065, filed 07/22/16). The State charged Timothy Webb with first-degree murder and criminal possession of a firearm. The jury convicted Webb of the firearm charge, but it failed to reach a verdict on the murder charge. Without any objection from Webb, the district court declared a mistrial. Shortly thereafter, Webb filed a motion to dismiss. The district court denied the motion, and Webb appealed. The Court of Appeals dismissed the appeal because Kansas statutes clearly only allow an appeal in the case of a final judgment, which requires a conviction and sentence.

State v. Brown, ___ Kan. ___, ___ P.3d ___ (No. 108218, filed 07/03/14). A premature notice of appeal that seeks review of a conviction and a sentencing yet to be completed lies dormant until the final judgment, including the complete sentence, is pronounced from the bench, at which point the notice of appeal becomes effective to endow the appellate court with subject matter jurisdiction. See also State v. Hall, 298 Kan. 978, Syl. ¶ 4, 319 P.3d 506 (2014).

State v. Hannebohn, 48 Kan. App. 2d 921, Syl. ¶ 3, 301 P.3d 340 (2013) (No. 107754, filed 05/03/13)(abrogated by State v. Hall, above). Hannebohn pled to criminal threat and was sentenced. At the initial sentencing hearing, the district court ordered restitution but left the amount to be determined at a later time. The district court also notified Hannebohn of his statutory appeal rights and the deadline for filing an appeal. At a subsequent hearing, the district court determined the amount of restitution, but did not advise Hannebohn of his right to appeal. Hannebohn later filed a motion to file an appeal out of time, claiming that he mistakenly believed that his court - appointed attorney was pursuing an appeal. The district court summarily denied the motion on the ground that the court had informed Hannebohn of his appeal rights at the initial sentencing hearing. The Court of Appeals ruled the district court erred by summarily denying Hannebohn's motion and remanded with directions for the district court to hold a hearing and make findings pursuant to State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982).

City of Wichita v. Lewis, 31 Kan.App.2d 837, 75 P.3d 1228 (2003). Appeals filed outside the 10-day limit of K.S.A. 22-3608 are untimely, even if the court stayed the sentence knowing the defendant intended to appeal. Even though the Court of Appeals had no jurisdiction, it held the language of the ordinance in question, providing that noises exceeding certain decibel levels are declared to be excessive, does not require decibel measurements in all cases for there to be a finding of excessive noise. A noise ordinance which requires a city to prove the alleged excessive noise interferes with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area, is not unconstitutionally vague.

Appeal, Limited

United States v. Booker, ___ F.3d ___ (10th Cir. No. 17-3167, ,filed //17). A terrorism suspect who agreed to a plea that included a waiver of his right to appeal cannot appeal the terms of probation imposee. To evaluate a motion to enforce a waiver, we consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315, 1325, 1328 (10th Cir. 2004) (en banc) (per curiam)."[P]lea agreements are governed by contract principles.” United States v. Cooper, 498 F.3d 1156, 1159 (10th Cir. 2007). Booker's alleged appeal falls within the scope of the voluntary waiver and enforcing the waiver would not result in a miscarriage of justice.

State v. LaPointe, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112019, filed 07/17/15). The State's right to appeal on a question reserved in a criminal case is only available after final judgment. Interlocutory appeals are limited to the specific situations listed in K.S.A. 2014 Supp. 22-3603. When the district court grants a motion for DNA testing under K.S.A. 2014 Supp. 21-2512, the statute provides for additional proceedings in the district court if the DNA testing is favorable to the defendant. One possible outcome is an order for a new trial, which is neither a final order nor an appealable nonfinal order. Because a district court's grant of a motion for DNA testing leaves open the possibility for further proceedings, the State may not appeal that order.

Appeal, Municipal Appeals

City of Junction City v. Somrak, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104729, filed 01/27/12). Somrak was convicted of illegal parking and appealed to district court. She did not serve the City Attorney with a copy of her notice of appeal. The district court ultimately acqutted her, and the state appeals on a question reserved. The Court of Appeals held that failure to serve a copy of the notice of appeal was not fatal..

Appeal, Judge Must Advise Defendant of Right To and Time Limit

State v. Brown, 150 P.3d 335, 2007 WL 219964 (unpublished, Case No. 94,832).

Attorney-Client Privilege

State v. Gonzales, ___ Kan. ___, ___ P.3d ___ (No. 102400, filed 06/18/10). A prosecutor who seeks to have criminal defense counsel testify about a current or former client's confidential information must file a motion for issuance of a subpoena. On hearing the motion, Kansas Rule of Professional Conduct 3.8(e) is the analytical rubric for a district court judge. Under it, the district judge may not issue such a subpoena unless the prosecutor establishes that (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. The grounds for quashing such a subpoena may include the nonexistence of any of the three KRPC 3.8(e) (2009 Kan. Ct. R. Annot. 564) factors, as well any of the other factors listed in K.S.A. 60-245(c). The initial

3 determinations made on the KRPC 3.8(e) factors in order to issue the subpoena have no preclusive effect, as those determinations were made without the participation of the attorney subject to the subpoena. Thus the State retains the burden of demonstrating the existence of each of the KRPC 3.8(e) factors, with one modification: If the attorney invokes the attorney-client privilege, the attorney has the burden to show the privilege applies; if, on the other hand, the State contends an exception to the privilege applies, the State has the burden of establishing the existence of the exception.


United States v. Ailon-Ailon, ___ F.3d ___ (10th Cir. No. 17-3178, filed 11/22/17). A risk of involuntary removal does not establish a “serious risk that [the defendant] will flee” upon which pre-trial detention may be based. § 3142(f)(2)(A). A defendant is not barred from release because he is a deportable alien. Bail decisions must be made on a case-by-case basis, and no blanket rule can be applied to defedants with ICE detainers.

Bias Crimes

City of Wichita v. Edwards, 23 Kan.App.2d 962, 939 P.2d 942 (1997). Evidence required to prove ethnic intimidation was also necessary to prove battery and disorderly conduct, therefore convictions of all three are multiplicitious.

Batson Challenges

State v. Gonzalez-Sandoval, ___ Kan. ___ (No. 114894, filed 12/21/18). Gonzalez-Sandoval was convicted of aggravated indecent liberties with a child. During jury selection, the State used a peremptory strike to remove a potential juror with a Spanish-sounding surname. Gonzalez-Sandoval objected to the strike. The State provided a race-neutral explanation, stating the prospective juror had not been candid when asked about having been a witness or having been interviewed by law enforcement. The district court allowed the State to strike the juror. During the trial, the State learned its asserted reason was incorrect. The potential juror had been questioned in one case, but not another. The Defendant renewed his objection but the trial court overruled it. On the second day of the trial, the prosecutor learned they were also mistaken about the witnesses involvement in the investigation. Again the Defendant renewed his objection but the trial court overruled it. The Supreme Court affirmed the district court. The Supreme Court held the State's honest but mistaken belief about a facially valid race-neutral reason for striking a minority venire member did not presumptively amount to purposeful discrimination in violation of Gonzalez-Sandoval's constitutional rights.

Davis v. Ayala, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-1428, filed 06/18/15). The issue was whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving. The Supreme Court held that any federal constitutional error that may have occurred by excluding Ayala’s attorney from part of the Batson hearing was harmless.

Burglary v. Trespass

City of Wichita v. Bannon, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,977, filed 06/18/09). Mid-America auto auction repeatedly notified Bannon not to enter the dealer's only area of the auction, but he did and was arrested. Bannon claimed that State v. Hall, 270 Kan. 194, 14 P.3d 404 (2000) required dismissal because it means you can't establish burglary based on a segregated portion of a structure. The district court purported to grant a "motion for acquittal" based on a stipulation prior to the jury being empaneled. Despite the judge's characterization, it was a dismissal allowing a state's appeal pursuant to K.S.A. 22-3602(b)(1). Additionally, the elements of trespass are broader than burglary, and unauthorized entry into a structure do not have to be proved to show a trespass. Reversed and remanded for trial.

Cities - Charter v. Regular Ordinance

Farha v. City of Wichita, 284 Kan. 507, 512, 161 P.3d 717 (2007). There was no requirement for Wichita to include in a charter ordinance opting out of the Code of Procedure for Municipal Courts, K.S.A. 12-4101 through 12-4602, a provision regarding court costs. Cities may establish substitute and additional provisions by ordinary ordinance once they have validly chartered out of a non-uniform enactment. Additionally, the City's charter ordinance was not repealed by later amendments to the enactment containing the statute from which the City was exempted.

Charging Discretion

Unites States v. Romero, ___ F.3d ___ (10th Cir. No. 03-4266, filed 03/09/2004). District court abused its discretion in denying the government's FRCP rule 48(a) motion to dismiss the charges against defendant in accordance with the pre-indictment agreement; public confidence in the judicial system would be severely undermined if defendants were to make agreements with the government which the courts declined to enforce.

United States v. Anderson, 940 F.2d 593 (10th Cir. 1991). It is permissible for a federal prosecutor to pursue charges against a defendant who has already been tried and convicted in state court. As long as a prosecutor's decision is not based on impermissible factors such as race, sex, religion or exercise of a statutory or constitutional right, so long as the prosecutor has probable cause to believe the defendant committed an offense, the decision whether or not to prosecute and what charge to file generally rests entirely in the prosecutor's discretion.

United States v. Hamm, 659 F.2d 624 (5th Cir. 1981). "Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought." 659 F.2d at 628 n. 13 (Burger, J.)

Civil & Criminal Liability

Connick v. Thompson, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-571, filed 03/29/11). Petitioner the Orleans Parish District Attorney's Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland , 373 U. S. 83 , by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney's office under 42 U. S. C. §1983, alleging , inter alia , that the Brady violation was caused by the office's deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney's office liable for failure to train and awarded Thompson damages. The Fifth Circuit affirmed by an equally divided court. The United States Supreme Court reversed, holding that a district attorney's office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation. Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by "action pursuant to official municipal policy," which includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. Monell v. New York City Dept. of Social Servs. , 436 U. S. 658 . A local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Canton v. Harris, 489 U. S. 378. Failure to train prosecutors in their Brady obligations does not fall within the narrow range of Canton 's hypothesized single-incident liability.

Mink v. Knox, ___ F.3d ___ (10th Cir. No. 08-2150, filed 07/19/10). In an action seeking damages for the search and seizure of plaintiff's computer as part of an aborted criminal libel prosecution, dismissal of the action against defendant-district attorney based on qualified immunity is reversed where: 1) the amended complaint plausibly asserted the requisite casual connection between defendant's conduct (reviewing the affidavit and warrant) and the search and seizure that occurred at plaintiff's home; and 2) because a reasonable person would not take the statements in the editorial column at issue as statements of facts by or about the alleged libel victim, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting a search and seizure of plaintiff's property.

Van de Kamp v. Goldstein, ___ U.S. ___, 129 S.Ct. 855, ___ L.Ed.3d ___ (No. 07-854, 2009). After being wrongfully convicted of murder based on the perjury of a jailhouse informant, Thomas Lee Goldstein brought a Section 1983 suit against John Van de Kamp and Curt Livesay, the chief prosecutors at the Los Angeles County District Attorney's Office. Goldstein alleges that the prosecutors failed to establish a system to share information about benefits given to informants, with the result that the prosecutor who tried Goldstein did not have information on the informant and consequently did not inform Goldstein, as is constitutionally required. Van de Kamp and Livesay claimed absolute immunity from civil suit, based on the Supreme Court's decision in Imbler v. Pachtman. The Ninth Circuit, however, held that since their alleged failures were administrative, and not prosecutorial in nature, Van de Kamp and Livesay were not entitled to absolute immunity. The Supreme Court reversed.

Pierce v. Gilchrist, ___ F.3d ___ (10th Cir. No. 02-6241, 02-6351, filed 3/2/2004). A claim may be actionable under section 1983 without satisfying the requirements of analogous common law tort. Motions to dismiss brought by a forensic chemist and a district attorney were properly denied; they are not entitled to qualified immunity on allegations that they employed falsified forensic evidence and testimony to prosecute accused persons, including plaintiff.

Stewart v. Abraham, ___ F3d ___ (3rd Cir. No. 00-2358, filed 12/27/01). The "rearrest policy" used by the Philadelphia District Attorney's office does not violate the Fourth Amendment of the U.S. Constitution.

McCormick v. Board of County Commissioners of Shawnee County, Kansas, 272 Kan. 627, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).. A prosecutor has absolute prosecutorial immunity for filing a complaint, but only qualified immunity for signing a probable cause affidavit. "It is a law enforcement officer who typically attests to facts in an affidavit."

Collateral Estoppel

State v. Parry, ___ Kan. ___, ___ P.3d ___ (No. 113130, 03/24/17), affirming 51 Kan. App. 2d 928, 930, 358 P.3d 101 (2015) (Parry II). Police received a report of an odor of marijuana at a residence. Officers responded but were denied consent to enter. Though the record does not conclusively establish what happened next, police ultimately performed a warrantless search of the apartment and discovered marijuana and drug paraphernalia. The district court suppressed the evidence holding the state failed to show consent to enter. The Court of Appeals affirmed in an unpublished decision, State v. Parry, ___ Kan.App.2d ___ (No. 110671, 2014 WL 1708137

(Kan. App. 2014) (unpublished decision) (Parry I). Four days later, the state dismissed the case, then filed a new case against Parry. Parry filed the same motion to suppress. The State advanced two new legal arguments to support the search's legality: there were exigent circumstances

excusing the need for a search warrant, or, alternatively, the drug evidence inevitably

would have been discovered. The district court granted the motion. The State filed a second interlocutory appeal. The Court of Appeals sua sponte raised law of the case and held the State could not again litigate the constitutionality of the search. Two issues are presented on review: (1) whether the panel majority erred by addressing the law of the case doctrine sua sponte; and (2) if the panel did have that authority, whether the panel majority correctly applied the doctrine. Answering the questions no and yes, the Supreme Court affirmed.

Competency, Defendant

In Re Snyder, ___ Kan. ___ (No. 117167, filed //17)(summary by Topeka Bar Association). The court unanimously denied Snyder's petition for habeas relief. In 2012, Saline County District Court found Snyder not competent to stand trial because of his intellectual disability. For the next few years, Snyder cycled through competency detainment and involuntary commitment. Most recently in November 2016, the district court found Snyder was still not competent to stand trial and ordered the State to initiate civil commitment proceedings against him Snyder petitioned for habeas relief, seeking release from confinement and dismissal of his criminal charges with prejudice based on federal speedy trial and due process violations. The court held delays attributable to Snyder's incompetency to stand trial did not infringe on his Sixth Amendment speedy trial rights. Furthermore, the court found no due process violation under Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), on the present showing. In a related case published the same day, In re Care & Treatment of Snyder, ___ Kan. ___, ___ P.3d ___ (2018) (No. 117,512, filed July 27, 2018), the court also upheld Snyder's most recent civil commitment.

 State of Kansas v. Glenn D. Gross, ___ Kan. ___ (Nos. 113275, 113376, 113277, and 113278, filed 05/25/18). Gross was convicted in Saline County District Court of nine counts of criminal threat, two counts of criminal damage to property, and three counts of battery against a county corrections officer. During a trial conference between the judge, Gross' attorney, and the prosecutor, Gross' attorney raised concerns about Gross' competence to stand trial. The trial judge noted Gross had been recently evaluated as competent to stand trial and found the attorney' concerns did warrant a new evaluation. On appeal, Gross argued he had been denied his statutory right to be present during a competency hearing. The Supreme Court held the Kansas competency statute did not require Gross' presence during a discussion of whether to order a competency evaluation, a step the court distinguished from a competency hearing.


State v. Lacy, ___ Kan. ___ (No. 117884, filed 08/24/18). Lacy raped his own daughter who was under 14 at the time. The state charged him with aggravated indecent liberties with a child. The statute provides two forms of indecent liberties with a child—one is touching, in which the offender touches the victim with the required criminal intent, and the other is soliciting, in which the offender solicits the victim to touch "the person of another," again with the required criminal intent. See K.S.A. 2015 Supp. 21-5506(a), (b)(2), and (b)(3). The complaint in this case alleged solicitation, while the evidence at trial showed touching. The state never moved to amend the charge. When the evidence at trial doesn't support the crime charged in the State's complaint, the proper remedy is to reverse the conviction without sending the case back for a new trial.

See State v. Fitzgerald, 308 Kan. ___, ___ P.3d ___, 2018 WL 3798389, at *5 (No.

112,492 filed August 10, 2018); State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639

(2007). There's one potential exception: Where there wasn't sufficient evidence to support the conviction but the evidence presented would have supported a conviction for a lesser included offense, the appellate court may send the case back for further proceedings on the lesser-included offense. Herrera, 41 Kan. App. 2d at 225. But that has no application here. No lesser-included offenses were submitted to the jury and the State has not argued on appeal that any might have been appropriate.

State v. Fitzgerald II, ___ Kan. ___ (No. 112492, filed 08/10/18). Defendant perped on a girl under 14, forcing her to perform oral sex on him. He was charged with h aggravated criminal sodomy, but the complaint alleged defendant forced her to perform sodomy on "any person" which the court has held to mean"a person other than the defendant." Prosecutions in this state are based on the charging document, which may be a complaint, indictment, or information. If the State charges a defendant with aggravated criminal sodomy under K.S.A. 2017 Supp. 21-5504(b)(2) but proves aggravated criminal sodomy under K.S.A. 2017 Supp. 21-5504(b)(1), the defendant's conviction is reversible for insufficient evidence. Stegall, in a well-reasoned dissent, would accept the State's invitation to overturn State v. Dickson, 275 Kan. 683, 69 P.3d 549 (2003), which erroneously interpreted our aggravated criminal sodomy statute when it held "any person" cannot include the defendant. As a result, Fitzgerald's conviction should stand.

State v. Moody, 282 Kan. 181, 192, 144 P.3d 612 (2006). Because prior DUI convictions are not elements of the offense of DUI, a complaint which fails to indicate each prior offense is not jurisdictionally barred; however, a defendant is entitled under due process to notice in the information or complaint of the severity level of the DUI offense being charged. Where a defendant with three prior DUI convictions receives notice in the complaint of the severity level of the DUI offense charged, and receives notice at the plea hearing of the maximum penalty for a fourth DUI offense, the defendant is appropriately sentenced as a fourth-time DUI offender, although the complaint alleged only "two or more" prior offenses. Also, there is no requirement to consider financial circumstances at sentencing when taxing BIDS reimbursement. Consideration of a defendant's financial resources at the time the assessment is enforced, rather than at the time of assessment, provided an outcome consistent with the legislature's intent in enacting K.S.A. 2002 Supp. 22-4513. See State v. Robinson, 33 Kan. App. 2d 773, 109 P.3d 185 (2005).

State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996); State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998); State v. Seems, 31 Kan.App.2d 794, 74 P.3d 55 (2003) and State v. Rome, 269 Kan. 47, 5 P.3d 515 (2000). Failure to allege a severity level in a DUI complaint means a defendant can only be sentenced for a B misdemeanor.

State v. Kraushaar, 264 Kan. 667, 957 P.2d 1106 (1998). "Whether a court has jurisdiction over the offense in a particular case is determined from the allegations in the accusation. An information is the only vehicle by which a court obtains and has limits placed on its jurisdiction."

Complaints, Defective

State v. Dunn, 304 Kan. 773, 375 P.3d 332 (No. 106586, filed 07/16/16). Dunn appealed his convictions for forgery and stalking alleging that the charging document's failure to allege all of the elements of the crime of forgery deprived the court of subject matter jurisdiction. After 45 pages of analysis, the court concluded that Kansas charging documents do not bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases; the Kansas Constitution does. The holding to the contrary in State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966), and in subsequent cases is overruled. Charging documents need only show that a case has been filed in the correct court, e.g., the district court rather than municipal court; show that the court has territorial jurisdiction over the crime alleged; and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas crime committed by the defendant. Dunn's complaint did those things, although it was far from a model of clarity - like the forgery statute. The court described both thusly, "To say that this language from the forgery statute is not a model of clarity is an obvious understatement. But, even with the difficulty of following it acknowledged, the language from Count 8 still goes it one better on the gibberish meter." Johnson dissents in part. He states the executive branch is charged with enforcing the laws, including choosing the crime to be charged under the circumstances, and the judicial branch of our government can't convict a person of a crime when the prosecutor—part of the executive branch of our government—has failed to charge that person with any crime under Kansas law.

City of Arkansas City v. Sybrant, 44 Kan.App.2d 891, 241 P.3d 581 (No. 102753 filed 11/05/10). An officer saw Sybrant weaving and stopped him. He turned out to be DUI. The complaint charged Sybrant with being in excess of the legal limit. On appeal to district court, the City alleged inability to safely operate. Sybrant then attacked the complaint as defective on appeal. Finding no prejudice, the Court rejected his claim. It held the amended municipal court complaint at issue in this case substantially complies with the requirements of K.S.A. 22-3201(b) and (c) and validly charges DUI based upon Sybrant's alcohol-concentration level. However, the Court reversed the conviction because the trial court improperly denied Sybrant's motion for self-representation without finding the motion would have delayed the trial proceedings or caused any greater disruption to the proceedings than normally attends pro se litigation. A criminal defendant's lack of legal sophistication is not a valid ground for denying the right to self-representation, even if the denial would be in the defendant's best interests

State v. McElroy, ___ Kan. ___, ___ P.3d ___ (No. 92968 , filed 3/17/2006). "The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001). As this issue is being raised for the first time on appeal, the post-State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), standard of review applies:

"The post-Hall standard applies a common-sense interpretation of complaints and informations and requires this court to look at whether the claimed defect in the information has prejudiced the defendant in the preparation of his or her defense, impaired the defendant's ability to plead the conviction in any subsequent prosecution, or limited the defendant's substantial rights to a fair trial." State v. Martis, 277 Kan. 267, 275, 83 P.3d 1216 (2004).

"The orderly resolution of criminal law issues requires timely raising of claims relating to the validity of an information. Tardily challenged informations are to be construed liberally in favor of validity. The validity of an information is to be tested by reading the information as a whole. The elements of the offense may be gleaned from the information as a whole. An information not challenged before verdict or finding of guilty or pursuant to K.S.A. 22-3502 by a motion for arrest of judgment will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted. [Citation omitted.]" Hall, 246 Kan. at 764.

In State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004), the court stated: "The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. [Citation omitted.] However, the test used for evaluating the sufficiency of the charging document depends on when the issue is first raised. [Citation omitted.]" If a defendant timely moves to arrest judgment in the district court, an appellate court will examine whether the charging document sets out the essential elements of the crime. If the charging document fails to set out the essential elements of the crime, it is fatally defective and the district court lacks jurisdiction to convict the defendant of the crime." 277 Kan. at 661-62.

In Shirley, the court discussed State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), which set forth a new standard of review when a defendant challenges the complaint for the first time on appeal. See 277 Kan. at 661-62. Restating the Hall standard of review when the charging document is challenged for the first time on appeal, the Shirley court stated:

"[T]he defendant must show that the claimed defect (1) prejudiced the defendant's preparation of a defense, (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution, or (3) limited the defendant's substantial rights to a fair trial under the Sixth Amendment to the United States Constitution or Section 10 of the Kansas Constitution Bill of Rights. [Citation omitted.]" 277 Kan. at 662.

Generally, if a defendant fails to move to arrest judgment at the district court, the defendant must establish one of the Hall factors to prevail on a claim of a defective complaint on appeal.

Conflict of Interest

State v. Miller, ___ Kan. ___ (No. 114373, filed 10/05/18). The DA's office was not disqualified from representing the state in defendant's murder retrial even though the defendant's son was living with his friend whose mother was an ADA (although not involved in the case). The safeguards put in place by the DA were sufficient to assure that Miller was not prejudiced by the ADA's living arrangements with a State's witness. Since this was a retrial, the witness had already provided his testimony at the earlier trial. The likelihood that the nonparticipating ADA could influence Matthew's testimony at retrial to the detriment of Miller was remote, if not nonexistent. And the ADA's isolation from the actual prosecution team further assured that any conflict of the ADA need not be imputed to the DA's office.

Confrontation, Right To

State v. Benson, 295 Kan. 1061, 287 P.3d 927 (No. 97905, filed 11/09/12). Benson argued that admission of a certificate of calibration for the Intoxilyzer 5000 machine used to determine the level of alcohol in Benson's breath without calling the person that calibrated the instrument violated his rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Court held that certificate of calibration is not testimonial in nature, therefore no violation occurred.

Williams v. Illiniois, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-8505. 6/18/12). Crawford v. Washington, 541 U. S. 36, 50 (2004), does not precludes an expert witness from testifying in a manner that has long been allowed under the law of evidence - specifically an expert can express an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify. In Williams' rape trial, the prosecution called an expert who testified that a DNA profile produced by Cellmark matched a profile produced by the state police lab using a sample of petitioner’s blood. The expert had testified the Cellmark sample was produced from semen found on the victim’s vaginal swabs. But The expert made no other statement that was offered for the purpose of identifying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample. Nor did the expert vouch for the accuracy of the profile that Cellmark produced. The district court correctly held the statement was not admitted for the truth of the matter asserted, and it is settled that the Confrontation Clause does not bar the admission of such statements. The law has long allowed an expert to express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert.

Michigan v. Bryant, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-150, filed 02/28/11). Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant's house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington, 541 U. S. 36 , and Davis v. Washington, 547 U. S. 813 , were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment 's Confrontation Clause, as explained in Crawford and Davis, rendered Covington's statements inadmissible testimonial hearsay. The United States Supreme Court reversed, holding that Covington's identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose . . . to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant's trial did not violate the Confrontation Clause.

United States v. Yeley-Davis, ___ F.3d ___ (10th Cir. No. 10-8000, filed 01/20/2011). Admission of certified Verizon cell phone records to establish defendant's conspiracy to distribute drugs did not violate her rights under the Confrontation clause, and it was not error to allow a law enforcement officer to testify about how cell phones work.

United States v. Robinson, ___ F.3d ___ (10th Cir. No. 08-3120, filed 10/20/09). Robinson was convicted and sentenced to 33 months in prison for being a felon in possession of a firearm after selling a gun to a confidential informant ("CI"). Six days before Robinson's trial, the government's star witness—the CI who purchased the gun from Robinson—was involuntarily committed to Osawatomie. The district court reviewed the CI's medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. The Circuit ruled that refusal to provide Robinson access to the CI's medical records contravened due process and that limitations on cross-examination of the CI violated the Sixth Amendment. The CI testified he only had "a little bit" of a drug problem and was not "regularly" violating his agreement with the ATF by using drugs. He also claimed his memory lapses were due solely to the passage of time. The medical records showed that the CI had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records also contain admissions by the CI that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the CI had a "long history of mental illness" starting in 2000, which included auditory hallucinations, seeing "things out through the window that are not really there," and "hearing voices telling him to do thing[s]." The Circuit concluded that if the jury had known these things, it might have rejected the CI's testimony and resulted in Robinson's acquittal. Notably, although the CI carried a digital recorder during the controlled buy of the weapon, the recording was "low-quality, interspersed with static, and revealed few details of the events that took place inside Robinson's home." Even the government admitted it had "limited evidentiary value."

State v. Laturner, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,086, filed 7/27/2007). K.S.A. 2006 Supp. 22-3437(3) which allows for admission of lab reports without the laboratory technician's testimony violates a defendant's right to confrontation under Crawford v. Washington, 541 U.S. 36, and is therefore unconstitutional. After the state files its notice of intent to proffer, the state or the court must schedule a hearing on whether the defendant voluntarily waives their right to confrontation.

Crawford v. Washington, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-9410, filed 03/08/ 2004). Admission of a testimonial statement made by defendant's wife during police interrogation violated the Confrontation Clause. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.

Contempt of Court

In Re J.T.R., ___ Kan.App.2d ___, ___ P.3d ____ (No. 105505, filed 2/24/12). A mother in a child in need of care proceeding violated a no-contact order preventing her from having unsupervised contact with her children. The mother's testimony was the only evidence presented to prove her contemptuous conduct. The district judge ordered her jailed for five days. The Court of Appeals reversed the contempt order for failure to comply with K.S.A. 20-1201. The district court gave the contemnor no way to purge herself of contempt. That sentence was wholly punitive. The court failed to give the contemnor "the keys to the jail." The court had no authority to impose a criminal contempt sentence in a civil contempt proceeding. Additonally, if viewed as an indirect criminal contempt of court proceeding, the contemnor was forced to testify against herself in violation of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights.

Contemporaneous Objection Rule

State v. Bogguess, ___ Kan. ___, ___ P.3d ___ (No. 103245, filed 01/20/12). K.S.A. 60-404 is relaxed in a bench trial on stipulated facts conducted by the same judge who heard the suppression hearing. In this case, both the trial court and the State knew that Bogguess objected to the admission of his statements made to the interviewing officers. Bogguess' counsel made it clear that Bogguess wished to reserve his right to appeal the trial court's decisions on these issues while proceeding to a bench trial on stipulated facts. While it would be better practice to include an express reservation in the stipulation, the failure to do so does not prevent our review. Further, at a Jackson v. Denno hearing, the issue before the trial court is whether the defendant's statement or confession was voluntary. The truthfulness of the statement is not at issue. The defendant may take the stand for the limited purpose of testifying about the events related to whether the statement was voluntarily made. Questions that go to the substance of the statements are outside the scope of a Jackson v. Denno hearing.


State v. Jones, 242 Kan. 385, 748 P.2d 839 (1988). Jones was the sole stockholder, president and operator of Johnson County Motors, Inc (JoCo). The state charged "Jones d/b/a Johnson County Motors Inc." with impairing Yamaha's security interest on JoCo's consigned inventory. Jones attacked the complaint as failing to charge a crime because "d/b/a" has no legal significance and because it was insufficient to hold him responsible as an individual for a corporate crime. The Court disagreed. If found the complaint sufficiently apprised Jones that he was being charged individually with corporate crimes, despite the lack of a reference to K.S.A. 21-3207. Failure to amend the complaint to proceed under 21-3207 did not make it insufficient. However, the trial court improperly broadened the scope of the charge by adding an alternate theory (individually) in the jury instruction, which could have led to a conviction of a charge of which Jones was unaware and thus deprived him due process.

Atchison Homeless Shelters, Inc. v. The County of Atchison, Kansas, 24 Kan. App. 2d 454, ___ P.2d ___ (1997). Only four categories of individuals may appear in the courts of this state (except for out-of-state attorneys): (1) members of the bar; (2) graduates of accredited law schools who have temporary permits to practice law; (3) legal interns, who are law students supervised by members of the bar responsible for the interns' activities; and (4) nonlawyers, who may represent only themselves and not others in court. Kansas follows the common-law rule that an appearance in court of a corporation by an agent other than a licensed attorney is not proper since a corporation is an artificial entity without the right of self-representation. See also State ex rel. Stephan v. Adam, 243 Kan. 619, 623, 760 P.2d 683 (1988); State ex rel. Stephan v. Williams, 246 Kan. 681, 690-91, 793 P.2d 234 (1990).

Costs and Fees

State v. Alvarez, ___ Kan. ___ (No. 115993, filed 01/18/19). When a defendant is convicted, K.S.A. 22-3801 and K.S.A. 2017 Supp. 28-172a permit a district court to tax the defendant for expenses that were reasonably related to the prosecution. Defendant pled to second-degree murder three days before trial. The state requested that defendant be taxed costs for witness fees and the development of photographs to be used as exhibits at trial. Defendant objected, claiming those costs were merely the cost of doing business. The Supreme Court disagreed, and agreed with the state's assertion that "court costs" include any expenses related to the prosecution of the defendant, finding the state's position in line with Kansas caselaw dating back to 1868.

State v. Douglas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105236, filed 06/15/12). A court's failure to provide a defendant a complete statement of costs as required by K.S.A. 22-3803 is directory, not mandatory. Failure to comply does not make court costs unenforceable. They can be collected as any judgment in a civil case, and no statute of limitations applies. However, the State's efforts to collect court costs from Douglas 19 years after imposition is likely barred by dormancy. K.S.A. 60-2403(a) provides in pertinent part that judgments, even those in favor of the State, become dormant 5 years following the date they are entered, unless within that time execution efforts occur or a renewal affidavit is filed. When a judgment becomes dormant and remains that way for 2 years, the trial judge is required to release the judgment when requested to do so. Long v. Brooks, 6 Kan. App. 2d 963, 966, 636 P. 2d 242 (1981).

State v. Lopez, ___ Kan.App.2d ___, ___ P.3d ___ (No. 93560, filed 10/13/2006). Expenses of the government's witnesses who testified about charges that resulted in acquittal cannot be assessed against the defendant as court costs. It is beyond the district court's discretion to award costs and expenses that were unrelated to prosecuting the crimes of conviction. Although it may be difficult to ascertain with precision, we believe the district court should determine which costs and expenses were necessary to prove the crimes of conviction.

Counsel, Appointed

State v. Stovall, ___ Kan. ___, ___ P.3d ___ (No. 100704, filed 11/22/13). Ricky Stovall had the right to conflict-free counsel when being tried for raping his young daughter. Judge Luenberger denied the public defender's three motions to withdraw, the first coming two weeks prior to trial. The Supreme Court reversed Stovall's convictions holding that forcing conflicted counsel to continue violated Stovall's rights under the Sixth Amendment.

Rothgery v. Gillespie County, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-440, filed 6/23/ 2008). Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm. The officers brought Rothgery before a magistrate judge, as required by state law, for a so-called "article 15.17 hearing," at which the Fourth Amendment probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment's dismissal. Rothgery sued under 42 U. S. C. § 1983 claiming that if the County had provided him a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed. He asserts that the County's unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel. The Supreme Court agreed, holding that a criminal defendant's initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct.

State v. McCormick, ___ Kan.App.2d ___, ___ P.3d ___ (No. 92,408, filed 05/25/07). Although the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel, the right does not extend to providing an indigent defendant with the representation of his or her choice. Therefore, the decision to grant a criminal defendant new appointed counsel depends heavily upon the circumstances presented in a given case, and the district court possesses broad discretion in determining whether to appoint new counsel. State v. Cromwell, 253 Kan. 495, 856 P.2d 1299 (1993). An appellate court will reverse a judgment of the district court for an abuse of discretion only when no reasonable person would have adopted the view of the district court. State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006).

            When a criminal defendant seeks the appointment of new counsel, the defendant must establish a justifiable dissatisfaction with the existing counsel, which has been narrowly interpreted to mean a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and the defendant. State v. Jasper, 269 Kan. 649, 654, 8 P.3d 708 (2000). Not all disagreements between counsel and defendants constitute irreconcilable conflicts or lead to complete breakdowns in communication. State v. Ferguson, 254 Kan. 62, 71, 864 P.2d 693 (1993).

Counsel, Ineffective

Garza v. Idaho, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 17-1026, filed 02/27/2019). Damned if you do, damned if you don't. Garza signed two plea agreements, each arising from state criminal charges and each containing a clause stating that Garza waived his right to appeal. Shortly after sentencing, Garza told his trial counsel that he wished to appeal. Instead of filing a notice of appeal, counsel informed Garza that an appeal would be “problematic” given Garza’s appeal waiver. After the time period for Garza to preserve an appeal lapsed, he sought state postconviction relief, alleging that his trial counsel had rendered ineffective assistance by failing to file a notice of appeal despite his repeated requests. The Idaho trial court denied relief, and the Idaho Court of Appeals affirmed. Also affirming, the Idaho Supreme Court held that Garza could not show the requisite deficient performance by counsel and resulting prejudice. In doing so, the court concluded that the presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U. S. 470, when trial counsel fails to file an appeal as instructed does not apply when the defendant has agreed to an appeal waiver. The Supreme Court disagreed. No appeal waiver serves as an absolute bar to all appellate claims. Because a plea agreement is essentially a contract, it does not bar claims outside its scope. And, like any contract, the language of appeal waivers can vary widely, leaving many types of claims unwaived. A waived appellate claim may also proceed if the prosecution forfeits or waives the waiver or if the Government breaches the agreement. Separately, some claims are treated as unwaiveable. Most fundamentally, courts agree that defendants retain the right to challenge whether the waiver itself was knowing and voluntary. The “ultimate authority” to decide whether to “take an appeal” belongs to the accused. Jones v. Barnes, 463 U. S. 745, 751. Garza’s attorney rendered deficient performance by not filing a notice of appeal in light of Garza’s clear requests. Gorsuch and Thomas dissent, saying Gideon was given a much more expansive reading than the constitution requires. Their dissent has liberals all a twitter.

Hinton v. Alabama, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-6440, filed 02/24/14). The Alabama appellate court's ruling denying the petition for habeas relief, which challenged petitioner's murder conviction, is vacated and remanded, where: 1) the Alabama courts incorrectly applied Strickland v. Washington to petitioner's case; 2) petitioner's trial attorney rendered constitutionally deficient performance because it was unreasonable for petitioner's lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000; and 3) the matter must be remanded for inquiry into whether, under the proper standard, petitioner's attorney's deficient performance was prejudicial under Strickland. Defense counsel hired an elderly, unqualified one-eyed military ordnance expert at a firearm and toolmark expert who was badly discredited by the prosecutor. Firearm toolmarks were important because two murders were tied to the same gun, found in Hinton's house, and the gun and bullets were the only physical evidence linking Hinton to those crimes.

Burt v. Titlow, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-414, filed 11/05/13). The Sixth Circuit erred in reversing the lower court's denial of a prisoner's habeas corpus petition, challenging her second degree murder conviction on the basis of ineffective assistance of counsel during plea bargaining, where the Sixth Circuit: 1) failed to apply the "doubly deferential" standard of review recognized by the Court's case law when it refused to credit the state court's reasonable factual finding that the prisoner's new attorney advised withdrawal of the guilty plea only after the prisoner's proclamation of innocence; and 2) assumed that counsel was ineffective where the record was silent

Lafler v. Cooper, (10-209) and Missouri v. Frye, (10-444), ___U.S. ___, filed 03/21/12). In 2003, Anthony Cooper faced trial for assault with intent to murder. Prosecutors offered Cooper two plea deals carrying lesser sentences than he would have received under the sentencing guidelines. Pursuant to the advice of his trial counsel, Cooper rejected both offers and received a sentence demonstrably longer than either plea offer. Cooper claims that the Sixth Amendment guarantees effective assistance of counsel at all critical stages of a criminal proceeding, including the plea bargaining process. Cooper argues that his trial counsel's ineffective assistance prejudiced his trial, and that he is entitled to reinstatement of the plea offer.

            After being charged with a felony for driving with a revoked license, Galin E. Frye was offered two plea bargain options: one, plead guilty to the felony with a recommended three years of imprisonment, or two, plead guilty to a misdemeanor with a recommended 90 days in jail. However, Frye's counsel never informed him of the plea options, and he subsequently pled guilty to the original felony charge. Frye appealed, arguing that his counsel's failure to inform him of the plea bargain violated his Sixth Amendment right to effective assistance of counsel. The Court held that both defendants were entitled to effective assistance of counsel during plea negotiations, but defendants must demonstrate a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it, if they had the authority to exercise that discretion under state law.

Missouri v. Frye, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-444, filed 03/21/12). Respondent Frye was charged with driving with a revoked license. Because he had been convicted of the same offense three times before, he was charged, under Missouri law, with a felony carrying a maximum 4-year prison term. The prosecutor sent Frye’s counsel a letter, offering two possible plea bargains, including an offer to reduce the charge to a misdemeanor and to recommend, with a guilty plea, a 90-day sentence. Counsel did not convey the offers to Frye, and they expired. Less than a week before Frye’s preliminary hearing, he was again arrested for driving with a revoked license. He subsequently pleaded guilty with no underlying plea agreement and was sentenced to three years in prison. Seeking postconviction relief in state court, he alleged his counsel’s failure to inform him of the earlier plea offers denied him the effective assistance of counsel, and he testified that he would have pleaded guilty to the misdemeanor had he known of the offer. The court denied his motion, but the Missouri appellate court reversed, holding that Frye met both of the requirements for showing a Sixth Amendment violation under Strickland v. Washington, 466 U. S. 668. Specifically, the court found that defense counsel had been ineffective in not communicating the plea offers to Frye and concluded that Frye had shown that counsel’s deficient performance caused him prejudice because he pleaded guilty to a felony instead of a misdemeanor. The Supreme Court agreed counsel's performance was deficient, but remanded for a hearing on prejudice. "If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice. In this case, given Frye’s new offense for driving without a license on December 30, 2007, there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the January 4, 2008, hearing, unless they were required by state law to do so.

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, (No. 08-651, filed 03/31/10). In 2002, Jose Padilla, a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claims he pled guilty in reliance on his defense counsel's advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claimed that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contended that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas. The Supreme Court disagreed, and held that Padilla made a prima-facie showing of ineffective assistance satisfying the first prong of Strickland. The court remanded for a hearing on how Padilla was prejudiced by the bad advice.

Counsel, Right To

United States v. Bryant, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 15-420, filed 06/13/16//16). Bryant, an Indian, liked to beat women and had multiple tribal-court convictions for domestic assault. For most of his convictions, he was sentenced to terms of imprisonment not exceeding one year’s duration, without counsel although he was indigent. Because of his short prison terms, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Based on domestic assaults he committed in 2011, Bryant was indicted on two counts of domestic assault by a habitual offender, in violation of 18 U.S.C. §117(a). Represented in federal court by appointed counsel, he contended that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element and moved to dismiss the indictment. The District Court denied the motion; Bryant pleaded guilty, reserving the right to appeal. The Ninth Circuit reversed the conviction and directed dismissal of the indictment. It comprehended that Bryant’s uncounseled tribal-court convictions were valid when entered because the Sixth Amendment right to counsel does not apply in tribal-court proceedings. It held, however, that Bryant’s tribal-court convictions could not be used as predicate convictions within §117(a)’s compass because they would have violated the Sixth Amendment had they been rendered in state or federal court. The Supreme Court reversed. Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution.

State v. Tims, ___ Kan. ___, ___ P.3d ___ (No. 109472 filed 08/14/15). A person accused of misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined. Though a driving under the influence (DUI) diversion is considered a prior conviction pursuant to K.S.A. 2011 Supp. 8-1567(j), the diversion does not have an underlying sentence attached to it and, thus, is distinguishable from a misdemeanor conviction resulting in a suspended jail sentence. An uncounseled DUI diversion is more analogous to an uncounseled misdemeanor conviction that did not result in any jail sentence. Consequently, an uncounseled DUI diversion can properly be used to enhance punishment for a subsequent DUI conviction without violating a defendant's constitutional right to counsel.

Rothgery v. Gillespie County, Texas, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-440, filed 06/23/08). On July 15, 2002, Walter Allen Rothgery was arrested without warrant and appeared before a local magistrate as required by Texas law. Following his release on bond, Rothgery made several written requests for appointed counsel to Gillespie County officials, but county officials failed to appoint defense counsel until after a grand jury indicted Rothgery six months later. Rothgery sued Gillespie County under 42 U.S.C. § 1983, claiming that the County's failure to grant his request until after indictment violated his Sixth Amendment right to counsel. Rothgery contended that his initial appearance before the magistrate constituted the commencement of "adversary judicial proceedings," which triggers an accused person's Sixth Amendment right to appointed counsel under U.S. Supreme Court precedent. Gillespie County supports the Fifth Circuit's holding that Rothgery's right to counsel did not attach until after Rothgery's indictment because, until that time, the state had not committed itself to prosecute Rothgery. The question here is whether attachment of the right also requires that a public prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. The Court held it does not.

State v. Youngblood, ___ Kan. ___, ___ P.3d ___ (No. 96,850, filed 05/08/09). Youngblood's felony possession charge is reversed. Youngblood was entitled to counsel when the municipal court found him guilty and sentenced him to a prison term, even though the jail time was conditioned upon probation. The state could not prove a valid waiver. The denial of that right to counsel renders the uncounseled misdemeanor conviction in municipal court unconstitutional under the Sixth Amendment. Accordingly, the unconstitutional conviction could not be collaterally used in district court for sentence enhancement.

State v. Long, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,736, filed 03/20/2009). Defendant was convicted of possession of methamphetamine. Three prior battery convictions from the Garden City Municipal Court were included in his criminal history score, and aggregated to a prior felony pursuant to K.S.A. 21-4711. Long claimed the misdemeanors should not have been counted because there was no proof he was represented by counsel nor waived counsel. Long did not initially receive a jail sentence on his batteries, but later received a suspended jail sentence when later hauled before the court for failure to pay his fines. The court held that the batteries were properly scored against Long, although any jail sentence or probation was invalid based on Alabama v. Shelton, 535 U.S. 654 (2002) and United States v. Jackson, 493 F.3d 1179 (10th Cir. 2007).

United States v. Gonzalez-Lopez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05–352, filed 6/262006). A trial court's erroneous deprivation of a criminal defendant's choice of counsel is not subject to harmless-error analysis and entitles the defendant to reversal of his conviction. Respondent hired attorney Low to represent him on a federal drug charge. The District Court denied Low's application for admission pro hac vice on the ground that he had violated a professional conduct rule and then, with one exception, prevented respondent from meeting or consulting with Low throughout the trial. The jury found respondent guilty. Reversing, the Eighth Circuit held that the District Court erred in interpreting the disciplinary rule, that the court's refusal to admit Low therefore violated respondent's Sixth Amendment right to paid counsel of his choosing, and that this violation was not subject to harmless-error review.

United States v. Bush, ___ F.3d ___ (10th Cir. No. 03-4224, filed 4/26//2005). Once the government establishes the existence of a prior conviction, it becomes the defendant's burden to prove by a preponderance of the evidence that the conviction was unconstitutional. This is so because a 'presumption of regularity' attaches to a final judgment even when questions of waivers of constitutional rights are waived. To overcome this presumption, a defendant may not simply point to a silent or ambiguous record, but must come forward with affirmative evidence establishing that the prior convictions were obtained in violation of the constitution.

Iowa v. Tovar, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 02-1541, filed 03/08/2004). For a right-to-counsel waiver at the plea stage to be "knowing and intelligent," it is sufficient that the trial court inform the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. He need not be warned of the risk that a viable defense will be overlooked, or that he will lose the opportunity to obtain an independent opinion on whether it is wise for

him to plead guilty.

Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (No. 00-1214, filed 5/20/2002). Suspended or Conditional Sentences of Imprisonment in Misdemeanor Cases Invoke a Right to Counsel. Defendant Shelton represented himself in a criminal trial. The Alabama court repeatedly warned Shelton about the problems self-representation entailed, but at no time offered him assistance of counsel at state expense. He was convicted of misdemeanor assault and sentenced to a 30-day jail term, which the trial court immediately suspended, placing Shelton on two years' unsupervised probation. The Alabama Supreme Court reversed Shelton's suspended jail sentence, reasoning that U.S. Supreme Court decisions in Argersinger v. Hamlin and Scott v. Illinois require provision of counsel in any petty offense, misdemeanor, or felony prosecution "that actually leads to imprisonment even for a brief period." The Alabama Supreme Court concluded that because a defendant may not be imprisoned absent provision of counsel, Shelton's suspended sentence could never be activated and was therefore invalid. The Supreme Court in a 5-4 decision affirmed. The majority held that suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged.

State v. Kraft, ___ Kan.App.2d ___, ___ P.3d ___ (No. .96,136. filed 7/27/2007). District court did not err in denying defendant's motion to withdraw his plea to attempted aggravated escape from custody. Although defendant had signed out of a community corrections program for house arrest, he never set up the equipment and failed to report thereafter. Thus, he was in lawful custody.

State v. Priest, 239 Kan. 681 (1986). Where the defendant is without assistance of counsel and has not waived the right of assistance of counsel, the State (or City) cannot have the benefit of an uncounseled diversion agreement to enhance the sentence for a subsequent DUI conviction.

Counsel, Waivers Of

State v. Hughes, ___ Kan. ___, ___ P.3d ___ (No. 98,716, filed 02/12/10). While the waiver of counsel form for municipal courts suggested in In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.3d 977 (1985), does not have to used verbatim, it will go a long way towards proving a valid advisory of rights and waiver. The law of this state "is realistic. Substance prevails over form." While the lack of judicial certification is not fatal, the necessary information must be ascertainable from other means. The waiver forms used by the Dodge City municipal court in this case did not show that Hughes was "fully and properly advised of his rights," thus the state failed in its burden to show a knowing and voluntary waiver and his two prior municipal court convictions should not have been included in his criminal history score.

Credibility of Witnesses, Comment On

State v. Johnson, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89,477, filed 3/26/2004). "KRPC 3.4(e) does not distinguish between prosecutor or defense counsel. When defense counsel calls a State witness a liar, he or she violates KRPC 3.4(e). Defense counsel, like the prosecutor, is prohibited from commenting on the credibility of a witness. Here, defense counsel clearly violated KRPC 3.4(e) by commenting on the credibility of a witness. A trial court which overrules a prosecutor's objection to defense counsel calling a State witness a liar compounds the violation of KRPC 3.4(e) . . . . Both counsel and judge are officers of the court and are required to abide by the rules of conduct."

Cruel & Unusual Punishment

State v. Riffe, ___ Kan. ___ (No. 113746, filed 06/08/18). Riffe kidnapped and raped a woman and was eventually sentenced to lifetime postrelease supervision. He alleged that was cruel and unusual in violation of section 9 of the Kansas Constitution Bill of Rights. The district court agreed and resentenced Riffe to a period of 10 years' postrelease supervision. The Court of Appeals reversed, holding, that the district court only applied two of the necessary three factors from State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 [1978]). In Freeman, the court set out the following factors:

"(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;

"(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and

"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense."

Freeman, 223 Kan. at 367. Stegall, J., concurred, but pointed out that "it is possible our Freeman based proportionality jurisprudence has no footing in the actual text and history of section 9 of the Kansas Constitution Bill of Rights."


Alvarez v. City of Brownsville, ___ F.3d ___ (5th Cir. No. 16-40772, filed 06/26/17). Reversing a jury award of $2 million to plaintiff who had not been provided exculpatory evidence before he pleaded guilty to assaulting a prison worker, the Fifth Circuit has found the Brady rule does not require providing such evidence to a party pleading guilty; it is relevant only where a judge or jury would be assessing guilt. Plaintiff George Alvarez (Alvarez) pleaded guilty in Texas state court to assaulting a prison employee. Based on video of the altercation which subsequently surfaced, the Texas Court of Criminal Appeals held that he was "actually innocent" of the assault and set aside his conviction. Alvarez subsequently filed suit in federal court against the City of Brownsville (City) and several law enforcement officers under 42 U.S.C. § 1983, asserting a Brady claim against the City for wrongful failure to disclose exculpatory evidence. The district court granted summary judgment for Alvarez, concluding as a matter of law that the City violated his constitutional rights under Brady. After a damages-only trial, a jury awarded Alvarez $2 million and $300,000 in attorney's fees. The City appealed. The Fifth Circuit reversed, instead ruling in favor of the City. Brady violations are defined in terms of potential effects of undisclosed information on a judge's or jury's assessment of guilt; therefore, the prosecutor's failure to disclose exculpatory information to an individual waiving right to trial by pleading guilty was not a constitutional violation.

State v. Lewis, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108147, filed 06/20/14). Troopers chased a car down Turner Diagonal where it eventually collided head-on with another. Two men fled from the car, and at trial there was an issue as to whether Lewis was the driver or the passenger. A paramedic testified that Lewis's injuries were consistent with someone driving. Lewis argued the paramedic's testimony constituted expert opinion and should have been excluded due to lack of an expert's report under 60-226(b)(6)(A). The Court of Appeals rejected the argument, holding that the civil procedure rule should not apply to criminal cases. Only 22-3212 and 22-3213 apply, and neither requires disclosure of expert testimony nor a report.

State v. Marks, ___ Kan. ___, ___ P.3d ___ (No. 103289, filed 04/19/13). Marks killed his soon-to-be ex-wife. Prior to trial he filed a motion to produce copies of witness statements taken from those who testified at the preliminary hearing, along with scientific test results, cell phone records, photographs, video/audio tape s, voicemails or other recordings, testimony transcripts of the defendant or anyone else, all exhibits the State intended to use at trial, his criminal record, the criminal record of all witnesses, and all exculpatory evidence. The district court denied the motion holding that the Wyandotte County DA's open file policy was sufficient. The Supreme Court held that was error. K.S.A. 22-3212 and K.S.A. 22-3213 unambiguously require disclosure to the defendant. The district court erred to the extent it held that K.S.A. 22-3212 and K.S.A. 22-3213 do not authorize a defendant to have personal copies of discovery and witness statements. We recognize the importance of protecting sensitive information, but we note K.S.A. 22-3212(e) provides a procedure for that very issue. The open file policy simply placed a larger band - aid over that problem than was necessary or permitted by statute. However, it held the error was harmless because it would not have likely changed the outcome at trial. See State v. Deavers, 252 Kan. 149, 158, 843 P.2d 695 (1992) (no constitutional violation when requested discovery files did not contain information that would have assisted the defense), cert. denied 508 U.S. 978 (1993).

State v. Grey, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103234, filed 01/20/12). The prosecutor in a 12-year old rape case told defense counsel the victim could not identify the rapist. In fact she could, and did at trial. The matter never came up at the preliminary hearing because the victim was never asked to identify the rapist. For these and other reasons, the court reversed Grey's rape conviction. One of the issues was the forsensic examiner's testimony about the amount of semen present, which indicated that intercourse had occurred within an hour or so before the examination. The examiner's initial report did not contain her opinion that the time of the intercourse was within hours. Her testimony is indeed significant because Grey's defense at trial was that he had consensual sex with L.S. the night before the rape. After a court has ordered a prosecutor to disclose an expert's report to the defense, the law requires the State to furnish any additional information later obtained from that expert to the defense. K.S.A. 22-3212(g) requires disclosure of these updates before or even during trial. During the course of a criminal prosecution, when the State has maintained to the court and defense counsel that it does not have certain evidence which it later obtains, fundamental fairness calls for the State to inform the court and counsel that it now has such evidence. This is especially true when the defense has been structured on the State's prior representation that such evidence does not exist.

Regan-Touhy v. Walgreen Company, ___ F.3d ___ (10th Cir. No. 06-6242, filed 5/20/2008). Plaintiff contracted herpes and had a prescription filled for her condition at Walgreens. Her condition became widely known in her hometown of Edmond, Oklahoma. Her ex-husband told her that a Walgreen's employee told him about her condition. Plaintiff sued Walgreens, and requested broad discovery from Walgreens to find out if the Walgreen's employee was the source of the information. The district court denied the discovery requests and granted Walgreens summary judgment. The Circuit affirmed, finding no abuse of discretion. With regard to a request for the Walgreen employee's personnel file, the Circuit stated, "personnel files often contain sensitive personal information, just as pharmacy files doe, and it is not unreasonable to be cautious about ordering their entire contents disclosed willy-nilly."

State v. Dumars; 33 Kan. App. 2d 735, 108 P.3d 448, 462 (2005). "An officer's field notes are "reports, memoranda or other internal government documents made by officers in connection with the investigation or prosecution of the case" and are not discoverable under K.S.A.2004 Supp. 22-3212(b). See, e.g., State v. Johnson & Taylor, 223 Kan. 119, 124, 573 P.2d 976 (1977); State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973), modified on other grounds 213 Kan. 585, 518 P.2d 136 (1974); State v. Mans, 213 Kan. 36, 40, 515 P.2d 810 (1973). Because K.S.A.2004 Supp. 22-3212(b) does not authorize discovery of an officer's field notes, K.S.A.2004 Supp. 22-3212(g) did not apply and the State committed no error in failing to disclose the officer's field notes earlier."

United States v. Ruiz, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-595, 6/24/2002). The Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. Although the Fifth and Sixth Amendments provide, as part of the Constitution's "fair trial" guarantee, that defendants have the right to receive exculpatory impeachment material from prosecutors, see, e.g., Brady v. Maryland, 373 U.S. 83, 87, a defendant who pleads guilty forgoes a fair trial as well as various other accompanying constitutional guarantees, Boykin v. Alabama, 395 U.S. 238, 243. As a result, the Constitution insists that the defendant enter a guilty plea that is "voluntary" and make related waivers "knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences." The Ninth Circuit in effect held that a guilty plea is not "voluntary" (and that the defendant could not, by pleading guilty, waive his right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that they would have had to make had the defendant insisted upon a trial. Several considerations, taken together, demonstrate that holding's error. 241 F.3d 1157, reversed.

United States v. Golyansky, ___ F3d ___ (10th Cir. No. 01-1499, filed 3/5/2002). District court abused its discretion by excluding testimony of a government witness for the prosecutor's failure to timely supply impeachment evidence (witnesses' mental health history) to the defendant until 19 days prior to trial. Although a sanction is appropriate, a continuance would have cured any prejudice, and in the absence of bad faith, the court should impose the least severe sanction that will accomplish prompt and full compliance with the discovery order. The preferred sanction is a continuance.

State v. Wilkins, 269 Kan. 39, 42, 5 P.3d 520 (2000). Prosecutors are under a positive duty, independent of either a defendant's request or court order, to disclose exculpatory evidence. Exculpatory evidence "'tends to disprove a fact in issue which is material to guilt or punishment' of a defendant." State v. Nuessen, 23 Kan. App. 2d 456, 461, 933 P.2d 155 (1997) (quoting State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 [1986]). Exculpatory evidence may include evidence bearing on the credibility of a key witness. 23 Kan. App. 2d at 461.

Dismissal with Prejudice

State v. Bohmer, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,090, filed 04/03/09). The state charged Bohmer with DUI, DWS & TOC. Bohmer filed a motion to dismiss with prejudice alleging that the DUI count was defective. The judge granted the motion and the state failed to appeal. The Court of Appeals affirmed dismissal of the DUI count, but reversed as to the other two. Under the facts of this case, where the court made it clear from the bench that the motion for dismissal with prejudice was sustained, and specifically referenced the State's right to appeal, and filed a motion minute sheet of record within 2 days of the hearing clarifying an intent to dismiss with prejudice, these are not circumstances where it is appropriate to apply the doctrine of excusable neglect under K.S.A. 60-2103(a) to permit a belated appeal of the ruling.

United States v. Chapman, 2008 WL 1946744 (9th Cir. 2008). The district court did not err in dismissing indictment based on government's failure to comply with discovery obligations and for making flagrant misrepresentations to the court. The prosecutor failed to keep a log indicating disclosed and nondisclosed materials, and repeatedly alleged that he had fully complied with Brady and Giglio, knowing full well he could not verify those claims.

State v. Bolen, 270 Kan. 337, 343-45, 13 P.3d 1270 (2000). It was an abuse of discretion for the trial court to dismiss charges with prejudice. Trial had been set for March 2. One week before trial, defense counsel indicated he would file a motion to suppress, which he did file on March 1 at 3 p.m. The court wanted to take up the motion at the regularly scheduled trial time, but the prosecutor was not available. The state requested a continuance, which the trial court denied, and dismissed the case "without–or with prejudice, . . . as a sanction for [failure to prosecute]." The trial court's judgment was reversed. Where there has been no showing that the defendant suffered actual prejudice as a result of a prosecutor's misconduct, and alternative means of sanctioning the prosecutor exist for the violation, dismissal of pending charges with prejudice is an abuse of discretion. Defendant having to take time off work for the hearing is only "slight" prejudice.

State v. Funk, 27 Kan.App.2d 712, 8 P.3d 32 (2000). District court did not abuse discretion where prosecutor twice advised defense counsel that DUI preliminary hearing would proceed the next day, defendant drove down from Iowa, and State was not ready to proceed and moved for a continuance. While a court should only sanction a prosecutor by dismissing a criminal complaint under "extremely compelling circumstances and where a lesser sanction would not accomplish the desired objective," there was no abuse of discretion in doing so in this case.

State v. Davis, 266 Kan. 638, 972 P.2d 1099 (1999). A prosecutor's failure to produce DUI discovery was contemptuous, but dismissal with prejudice is a "very drastic sanction," that should not be imposed if a lesser sanction would accomplish the desired objective. In the absence of prejudice to the defendant, sound policy considerations favor resolution of criminal charges on their merits.

State v. Miller, 257 Kan. 844, 854-55, 896 P.2d 1069 (1995). Dismissal by the court should only occur under "extremely compelling circumstances."

State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993). It is ordinarily the prosecutor's decision to dismiss, not the court's.

State v. Williamson, 253 Kan. 163, 165, 853 P.2d 56 (1993). The court dismissed aggravated assault charges committed against the defendant's family. Defendant was schizophrenic and held for treatment. Defendant moved to dismiss. After hearing the wife's testimony that the defendant was schizophrenic, the court held there was no longer any probable cause and dismissed the charges. The Supreme Court reversed. "A county attorney or district attorney is the representative of the State in criminal prosecutions. As such, he or she controls criminal prosecutions. It is the county or district attorney who has the authority to dismiss any charge or to reduce any charge." "The prosecuting attorney has discretion to dismiss charges, and the court cannot refuse to allow a dismissal." The court's dismissal of criminal charges, no matter how enlightened, was "impermissible judicial intrusion into the prosecutor's function."

City of Overland Park v. Pavelcik, 248 Kan. 444, 448-49, 806 P.2d 969 (1991). The "drastic procedure" of dismissal by the court "in an action involving the rights of citizens [must] be exercised with the utmost care." The record should support the district court's action that leads to the "extraordinary remedy of dismissal."

State v. Clovis, 248 Kan. 313, 331, 807 P.2d 127 (1991). "A dismissal with prejudice is a very drastic sanction to impose in a criminal case. Such sanction should not be imposed if a lesser sanction would accomplish the desired objective."


State v. Kacsir, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102559, filed 02/25/11). Defendant drove onto the shoulder of Interstate-70 in Topeka and stopped her car less than 100 hundred yards in front of a parked Trooper. Seeing this, the trooper pulled up and turned on his emergency lights. The trooper later testified he approached Defendant to see if she was having mechanical problems with her car, if she needed directions, or if there was a medical emergency. The defendant was intoxicated and was convicted of DUI. She alleged all evidence should have been suppressed because there was no reason to stop her. The Court of Appeals held it was not a voluntary encounter because the Trooper turned on his emergency lights, but was a valid public safety stop because the trooper gave specific reasons for stopping and approaching the car. Defendant also claimed she was arbitrarily denied diversion because she did not apply within 30 days of first appearance (she waited 5 months and only applied after losing her motion to suppress). The Court held the DA's policy was justified by avoiding unnecessary preparation and was not aribtrary.

State v. Bishop, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102751, filed 10/08/10). A prior DUI diversion agreement entered into by a minor constitutes a prior conviction for sentence enhancement purposes.

State v. Hurla, ___ Kan. ___, ___ P.3d ___ (No. 87852, filed ____ 2003). State and defendant entered into diversion. Defendant filed a motion for early termination. District court dismissed the criminal case. Supreme court held that district court had no jurisdiction over the diversion agreement because defendant had not successfully completed it.

State v. Scheuerman, ___ Kan.App.2d ___, ___ P.2d ___ (No. 88,7411, filed 8/1/2003). State can require a defendant to plead to some counts of a multi-count complaint, provided it is not the charge upon which the defendant enters into a diversion. K.S.A. A. 22-2910. "Diversion delays adjudication on the diverted charge until the defendant has either: (1) failed to fulfill the terms of the diversion agreement, which results in the criminal proceedings being resumed; or (2) fulfilled the terms of the diversion agreement, which results in the case being dismissed with prejudice. K.S.A. 2002 Supp. 22-2911(a) and (b). During the delay in adjudication, "the defendant is not required to enter a plea; no trial is held; and the district court does not make a finding that the evidence substantiates the defendant's guilt." State v. Macias, 30 Kan. App. 2d 79, 82, 39 P.3d 85 (2002)." Also, if a term of a diversion agreement is illegal, the remainder should be enforced: "Even if we were to find that Scheuerman's diversion agreement for aggravated assault unlawfully contained a condition that he plead guilty to criminal threat, we could not reach the result Scheuerman requests, i.e., that the entire diversion agreement be declared void. In Petty, the Supreme Court found that a condition of diversion requiring the defendant to serve 48 hours in jail was void because it was contrary to public policy. 270 Kan. at 854. However, Petty rejected the State's argument that the entire diversion agreement had to be voided if the jail-time condition was invalidated. The opinion declared that "[c]ourts may void only those portions of a diversion agreement that violate the intent of the legislature and order enforcement of the remaining provisions." 270 Kan. 847, Syl. ¶ 6. Thus, eliminating the condition that Scheuerman plead to criminal threat would only affect the validity of the criminal threat conviction, not the aggravated assault against a law enforcement officer conviction. Even without the criminal threat plea condition, the remaining portions of the aggravated assault diversion agreement were enforceable. Scheuerman's violation of the remaining diversion conditions resulted in the subsequent, valid conviction.

Double Jeopardy

Evans v. Michigan, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 11-1327, 02/20/13). A Michigan trial court granted defendant-petitioner Lamar Evans a directed verdict of not guilty after the State of Michigan charged him with burning property because the State of Michigan failed to prove that the property Evans allegedly burned (an unoccupied house) was not a dwelling, a fact the court mistakenly believed was an element of the statutory offense.. Upon appeal, the Michigan Supreme Court determined that the trial court erred when it required the State of Michigan to prove that the property was not a dwelling, and also held that the Double Jeopardy Clause of both the Fifth Amendment and the Michigan Constitution did not bar Evans’ retrial for the same offense because the error involved an element that was added to the offense. As a result, the directed verdict did not relate to an actual factual element of the case and therefore failed to address Evans’ guilt or innocence of the charged offense. Evans appealed arguing that the Michigan Supreme Court erroneously carved out a novel “Extra Element” exception to the Double Jeopardy Clause. The Supreme Court agreed and held that double jeopardy barred his retrial.

State v. Jenkins, ___ Kan. ___, 284 P.3d 1037 (No. 100396, filed 09/07/12). Jenkins pled to theft in Wichita Municipal Court. The state had charged Jenkins with felony theft based on the same incident because he had two priors. Jenkins pled in municipal court on June 5, 2007—just 5 days after the felony charges were filed. On June 21, 2007, the city prosecutor moved to vacate the misdemeanor theft conviction. The City argued the municipal court lacked jurisdiction to prosecute the misdemeanor theft charge because Jenkins' crime should have been classified as a felony under K.S.A. 21-3701(b)(6), citing State v. Elliott, 281 Kan. 583, Syl. ¶ 1, 133 P.3d 1253 (2006). The municipal court granted the City's motion to vacate. The Court of Appeals affirmed State v. Jenkins, No. 100,396, 2009 WL 2144059, at *1-2 (Kan. App. 2009) (unpublished opinion), and held that the statutory protection against double jeopardy, does not bar a second prosecution when the court presiding over the first prosecution lacked jurisdiction. 2009 WL 2144059, at *2. Jenkins sought review. The Supreme Court affirmed the Court of Appeals, holding that the city ordinance conflicted with K.S.A. 21-3701(b)(6) and could not serve as a basis for the Wichita municipal court's exercise of jurisdiction. Consequently, it does not matter that a prosecutor has discretion to decide the level of offense to charge. Justice Johnson, joined by Beier and Rosen, dissented, holding that since the municipal prosecutor alleged a misdemeanor theft, K.S.A. 12-4104 established municipal court jurisdiction and double jeopardy should apply to bar retrial.

Blueford v. Arkansas, 565 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1320, filed 05/24/12). Arkansas charged Blueford with capital murder for the death of a one-year-old child. That charge included the lesser offenses of first-degree murder, manslaughter, and negligent homicide. Before the start of deliberations, the trial court instructed the jury to consider the offenses in turn. The court also presented the jury with a set of verdict forms, which allowed the jury either to convict Blueford of one of the charged offenses, or to acquit him of all of them. Acquitting on some but not others was not an option. After deliberating for a few hours, the jury reported that it could not reach a verdict. The court inquired about the jury's progress on each offense. The foreperson disclosed that the jury was unanimous against guilt on the charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. When the State subsequently sought to retry Blueford, he moved to dismiss the capital and first-degree murder charges on double jeopardy grounds. The trial court denied the motion, and the Supreme Court of Arkansas affirmed on interlocutory appeal. The Supreme Court affirmed, holding the Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder. When the foreperson told the court how the jury had voted on each offense, the jury's deliberations had not yet concluded. The jurors in fact went back to the jury room to deliberate further, and nothing in the court's instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued. The foreperson's report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.

Renico v. Lett, 559 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-338, filed 05/03/10). Defendant's first trial for inter alia, first-degree murder took less than nine hours. The jury deliberated for four hours, and sent the trial court seven notes, including one asking what would happen if the jury could not agree. The judge called the jury and the attorneys into the courtroom and questioned the foreperson, who said that the jury was unable to reach a unanimous verdict. The judge then declared a mistrial, dismissed the jury, and scheduled a new trial. Defendant was convicted by the second jury, who deliberated for 3 hours and 15 minutes. Lett claimed the judge in his first trial had announced a mistrial without any manifest necessity, thus the second trial was barred by double jeopardy. The Michigan Supreme Court disagreed. It then found that the judge at Lett's first trial had not abused her discretion in declaring the mistrial, observing that the jury had deliberated a sufficient amount of time following a short, noncomplex trial; that the jury had sent several notes, including one appearing to indicate heated discussions; and that the foreperson had stated that the jury could not reach a verdict. In Lett's federal habeas petition, he contended that the Michigan Supreme Court's rejection of his double jeopardy claim was "an unreasonable application of … clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), and thus that he was not barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) from obtaining federal habeas relief. The District Court granted the writ, and the Sixth Circuit affirmed. The United States Surpeme Court reversed. The question under AEDPA is whether the Michigan Supreme Court's determination was "an unreasonable application of … clearly established Federal law," §2254(d)(1), not whether it was an incorrect application of that law, see Williams v. Taylor , 529 U. S. 362 . When a judge discharges a jury on the grounds that the jury cannot reach a verdict, the Double Jeopardy Clause does not bar a new trial for the defendant before a new jury, Perez, 9 Wheat., at 579-580.

United States v. Tafoya, ___ F.3d ___ (10th Cir. No. 08-2113, filed 02/24/2009). In a AUSA's first federal trial on felon in possession of a firearm, he asked a Sergeant an open-ended question, "what happened after that?" eliciting a response that violated an order in liminie keeping out all the other bad stuff the defendant did on the day he unlawfully possessed the weapon. Defendant was apparently a bondsman who forced his way into someone's home and battered them while armed with a shotgun. The Sergeant testified "dispatch [sent] us back out there and advised us that the bondsmen were back, and that this time they were battering some of the residents." A mistrial was declared, and Tafoya was retried. He argued that the AUSA goaded him into moving for a mistrial and the retrial was therefore barred by double jeopardy. The Circuit rejected his argument, finding no intentional goading - just a mistake. The court also held there was no error in not allowing defense counsel to put the AUSA under oath. It is sufficient for the judge to make preliminary inquiry of the AUSA before deciding whether to allow an evidentiary hearing. See also Oregon v. Kennedy, 456 U.S. 667 (1982).

State v. Jones, ___ Kan.App.2d ___, ___ P.3d ___ (No. 92,504, unpublished opinion filed __/__2005). A jury found defendant guilty of DUI. Jones filed a motion for acquittal and new trial prior to sentencing claiming the state failed to lay sufficient foundation for the breath test. The district court granted Jones' motion for new trial. Jones moved for dismissal on double jeopardy grounds, and the district court granted his motion. The Court of Appeals sustained the state's appeal, holding that in the absence of prosecutorial misconduct, the defendant waived his right to plead double jeopardy by being granted a new trial.

Smith v. Massachusetts, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 03-8661, filed 2/22/2005). Under the Double Jeopardy Clause, a judge's acquittal of a defendant, midway through a jury trial, precludes the judge from reconsidering that acquittal later in the trial.

City of Salina v. Amador, ___ Kan.App.2d ___, ___ P.2d ___ (No. 90,166, filed 3/12/2004). Amador was convicted of battery and criminal damage to property in municipal court. He appealed to district court. On the day of trial, the City's witnesses did not appear. The district court denied the City's motion for a continuance, and granted Amador's motion to dismiss without prejudice for failure to prosecute the case. The city refiled the charges in municipal court and convicted Amador again. He again appealed, and moved to dismiss on double jeopardy grounds. The district court dismissed the case, holding the city had to appeal from the prior dismissal. The Court of Appeals reversed, holding Amador's first conviction by the municipal court was vacated by Amador's appeal, and no jeopardy attached in the first appeal because no evidence was heard and no witnesses were sworn.

United States v. Andersen, 940 F.2d 593, 596 (10th Cir. 1991). It is permissible for a federal prosecutor to pursue charges against a defendant who has already been tried and convicted in state court.

DUI Charging

City of Wichita v. Marlett, 31 Kan.App.2d 360, 65 P.3d 547 (2003). A complaint that fails to allege a DUI severity level is not defective, and city cannot amend the severity level upwards on appeal.

State v. Larson, 265 Kan. 160, 958 P.2d 1154 (1998). Failure to amend a citation to include crime severity level not fatal, but means state can only prosecute for minimum crime, here a class B misdemeanor for first offense DUI. Clarifies State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996).

DUI Discovery

State v. Francis, ___ Kan. ___, ___ P.3d ___ (No. 92087, filed 10/27//2006). The prosecutor allegedly failed to turn over evidence that a bondsman suffered from post-traumatic stress disorder and had trouble keeping the facts straight regarding his son's own murder and defendant's murder. Defense counsel argued that failure to disclose this information violated Giglio v. United States, 405 U.S.150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Court found no violation because the witnesses testimony was consistent throughout the investigation and there was no reasonable probability that had the evidence been disclosed it would have changed the outcome of the trial. Materiality is governed by Youngblood v. West Virginia, ___ U.S. ___, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006). What is required for a showing of materiality is a reasonable probability that had evidence been disclosed to the defendant, the result of the proceeding would have been different. But a demonstration that disclosure of the evidence would have resulted in acquittal is not required. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

State v. Davis, 266 Kan. 638, 972 P.2d 1099 (1999). Prosecutor’s failure to provide DUI discovery (certification of standard solution and weekly test results of the Intoxilyzer 5000 for two months preceding, month of, and month following breath test) requested by defense counsel and ordered by court resulted in dismissal of complaint with prejudice. Supreme court held documents were relevant and subject to discovery and should have been produced and mailed to defense counsel. Contempt finding was not an abuse of discretion, but dismissal of charges was.

State v. Wanttaja, 236 Kan. 323, 691 P.2d 8 (1984). Defense counsel was granted access to police files at the Hutchinson police department, but never was shown defendant's blood test. He waited until the morning of trial to request suppression. The district court and Court of Appeals held the results should be suppressed. The Supreme Court reversed, holding that suppression was too draconian a remedy where defense counsel never notified the prosecutor the test result had not been provided.

DUI Sentence Enhancement

State v. Mejia, ___ Kan.App.2d ___ (No. 121475, filed 05/22/2020). Mejia had three prior DUI convictions from Missouri and was charged with felony DUI based on his priors. The district court declined to bind him over saying the Missouri statutes were broader than the Kansas DUI statute, citing State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). The Court of Appeals reversed. A conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 2019 Supp. 8-1567 from a misdemeanor to a felony or to increase the punishment of a recidivist, even though the other state's statute proscribes a broader range of conduct. The two statutes need only be generally comparable as defined in K.S.A. 2019 Supp. 8-1567(j). The Kansas Legislature has amended K.S.A. 8-1567 to permit charging and sentencing enhancements for DUIs based on out-of-state convictions under statutes that are comparable to Kansas law—meaning "similar to" rather than the same as or narrower than Kansas law. The amendment applies in this case. The relevant Missouri statute, Mo. Rev. Stat. § 577.010, is similar to K.S.A. 8-1567, so Mejia's convictions support the felony charge, consistent with the legislative policy behind the escalating punishment of recidivist drunk drivers. Intoxicated drivers pose an indisputably serious and, indeed, often lethal danger to the motoring public. Schroeder dissents, and suggests that State v. Gensler, 308 Kan. 674, 683, 423 P.3d 488 (2018), controls.

State v. Key, 50 Kan.App.2d 137, 151, 323 P.3d 174 (2014), rev. denied ___ Kan. ___ 04/29/15). A claim that a defendant's counsel was ineffective for entering a plea of guilty on his or behalf without the authority to do so does not provide an independent basis upon which to collaterally attack the validity of a prior misdemeanor conviction used to enhance a subsequent sentence.

United States v. Jackson, ___ F.3d ___ (10th Cir. No. 06-2079, filed 7/9/2007). Prior uncounseled domestic violence convictions can be used to enhance a subsequent drug sentence under the federal sentencing guidelines if the prior conviction did not result in a jail sentence. Defendant was convicted in 1995 for battery, domestic violence and negligent use of a firearm. He was sentenced to 90 days, all of which was suspended, and ordered to pay a fine of $528.00 The Circuit held the conviction was valid (although the suspended sentence portion was not) and could be used to enhance the sentence. Alabama v. Shelton, 535 U.S. 654, 662 (2002); Nichols v. United States, 511 U.S. 738, 749 (1994).

State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006). Are prior municipal convictions valid to enhance a subsequent sentence when state law indicated the offense was a felony? No. Does city have subject matter jurisdiction to prosecute offenses state law makes a felony? No. Municipalities could not prosecute third or subsequent DUI violations because they were statutorily designated as felonies.

State v. Peterson, 29 Kan. App. 2d 792, 31 P.3d 317, rev. denied 272 Kan. 1422 (2001). On a DUI 2d offense, the minimum 5 consecutive days may be reduced for time spent in jail prior to conviction only if the defendant’s time in jail in lieu of bond exceeded 5 days.

State v. Masterson, 261 Kan. 158, 165, 929 P.2d 127 (1996). On a DUI 1st, the minimum 48 consecutive hours may be reduced for time spent in jail prior to conviction only if the defendant’s time in jail in lieu of bond exceeded the minimum sentence.

State v. DeLacruz, 258 Kan. 129, 899 P.2d 1042 (1995). Prior uncounseled battery convictions can be used to enhance a subsequent offense under the KSGA if the prior conviction did not result in a jail sentence.

State v. Priest, 239 Kan. 681, 722 P.2d 576 (1986). Where record is silent on whether defendant had or waived counsel for a first offense DUI diversion, she is presumed to not to had counsel and the diversion cannot be used to enhance a subsequent DUI sentence.

State v. Sedillos, 279 Kan. 777, 112 P.3d 854 (2005) (No. 91498, filed 6/3/2005). Due process does not require that a defendant be informed of all collateral consequences which might result from a guilty plea. One of the collateral consequences of which a defendant need not be informed is the possibility that the conviction may be used to enhance the sentence for a later crime.

State v. Allen, 28 Kan. App. 2d 784; 20 P.3d 747 (2001). An uncounseled misdemeanor conviction involving a suspended sentence or probation that does not result in incarceration may be included in a defendant's criminal history under the Kansas Sentencing Guidelines Act, even though the conviction has the effect of enhancing the defendant's sentence under the guidelines.

State v. Patterson, 262 Kan. 481, 939 P2d 909 (1997). A defendant who collaterally challenges the use of a prior conviction to enhance his or her sentence has the burden to show that he or she did not have the benefit of counsel at the prior conviction and, absent such a showing, the enhanced sentence is presumed to be regular and valid.

State v. Bell, 30 Kan.App.2d 395, 396–97, 42 P.3d 749, rev. denied 274 Kan. 1114 (2002). To determine offense severity, begin counting as of the date of the presence offense and look backwards for prior convictions. See also State v. Ford, 187 P.3d 608 (Table)(unpublished); No. 97,719, filed 07/18/08), rev. denied 01/22/09.


State v. Moore, ___ Kan. ___, ___ P.3d ___ (2001)(No. 82,411 filed June 1, 2001). Kansas cases have distinguished great bodily harm from bodily harm, noting the term "great" distinguishes the bodily harm necessary from slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained by simple battery. Disfigurement has no single technical meaning or single definition and should be considered in the ordinary sense. When an injury has been established, the question of whether it constitutes great bodily harm or disfigurement is normally a question to be determined by the trier of fact. The trial court correctly determined that the evidence would not justify a jury verdict in accord with a theory that the victim's injuries constituted bodily harm as that term is used in defining simple battery. Where the only evidence of record established that serious injuries occurred, resulting in the scarring of the victim, there was no substantial evidence applicable to the lesser degree of the offense charged.


State v. Chamberlain, 280 Kan. 241, 120 P.3d 319 Syl. 12 (Kan.,2005). Because of the State's strong interest in regulating the driving of motor vehicles and the clear evidence of the havoc rendered by drunk drivers, the State has legitimate police power to amend or enact laws designed to penalize and deter persons from driving after consuming alcohol or drugs.

State v. Sandstrom, 273 Kan 558, 44 P.3d 434 (2002). Ms. Sandstrom, 53 years old, was convicted of 1st degree murder in 1977. She was sentenced to life in prison. Ms. Standstrom served 15 years of her life sentence and was paroled in 1992. She lived an exemplary life for 10 years and in 2002 petitioned the court to allow for her 1st degree murder conviction to be expunged. The law on expungement had changed for 1st degree murder. The law in 1977 did allow for expungement of a 1st degree murder conviction and in 2001 the law changed and no longer allowed it. Sandstrom had a hearing and presented a number of witnesses. The Court found:

.....[t]he public's interest in maintaining Petitioner's record of murder is exceptionally compelling, and the Court will not grant annulment or expungement of the conviction Consequently, upon balancing the benefits Petitioner alleges she would gain from expungement against the public's interest in maintaining Petitioner's criminal record, the Court concludes that the public's interests prevail.

State v. Anderson, 12 Kan.App.2d 342, 744 P.2d 143 (1987). Denying a defendant the opportunity to expunge his criminal record constitutes a punishment and denying him the opportunity to remove his criminal record disadvantages him. Retroactively eliminating the opportunity to remove the defendant's criminal record violates the ex post facto clause of the United States Constitution.

State v. Miller, 214 Kan. 538, 520 P.2d 1248) (1974). The court is not required to rubber stamp a petitioner's request just because they met the statutory requirements for expungement but should engage in a weighing of factors concerning the petitioner's situation and society's interest.


State v. Montgomery, ___ Kan.App.2d ___ (No. 120992, unpublished, filed 11/06/2020). The person who lays the foundation for a photograph need not be the person who took the photograph. State v. Pruitt, 42 Kan. App. 2d 166, 176, 211 P.3d 166 (2009). No statute or case requires the witness to be the person who downloaded the video from the cameras or burned it onto the DVD. State v. Miles, No. 110,511, 2014 WL 7565767, at *7 (Kan. App. 2014) (unpublished opinion). And those testifying do not have to state specifically that the pictures are "fair representations" of what was portrayed. State v. Suing, 210 Kan. 363, 365, 502 P.2d 718 (1972). The officer's testimony that he saw the video that depicted the events, and he obtained the video from the store manager the next day was sufficient foundation to admit the video.

State v. Yazell, ___ Kan. ___ (No. 116761, filed 06/19/2020). Because the Kansas Adult Supervised Population Electronic Repository (KASPER) is unreliable evidence, courts may not rely on it to make factual findings. The Court of Appeals erred when dismissing an appeal as moot by relying on KASPER and the State's hearsay assertions about a Corrections employee confirming the accuracy of a KASPER report indicating that defendant was no longer in custody.

Pena-Rodriguez V. Colorado, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 15-606, 03/06/17). Colorado’s jury non-impeachment statute (similar to K.S.A. 60-441) must yield when a criminal verdict may be based, in part, on a racial stereotype. The crime was a sexual assault and one of the jurors said during deliberations that "Mexican men had a bravado that caused them to believe they could do whatever they wanted with women."

District Attorney's Office v. Osborne, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-6, filed 06/18/09). Alaska prosecutors asked the Court to overturn a federal appeals court ruling in favor of William Osborne, who was convicted of rape, kidnapping and assault in an attack on a prostitute in 1993. Osborne raped the victim at gunpoint, beat her with an axe handle, shot her in the head and left her for dead in a snow bank near the Anchorage International Airport. Osborne admitted his guilt under oath to the parole board in 2004. Another man also convicted in the attack has repeatedly identified Osborne as having participated in the crimes. Osborne requested DNA testing on a condom and hairs found by investigators, but Alaska had no law allowing such testing. The 9th Circuit said Osborne has a right to subject the evidence to advanced DNA testing that was not available at the time of his trial. Osborne urged the court to reject the appeal, saying that because so many states have laws on the topic, it rarely arises in federal court. The Supreme Court held that Osborne's approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause. Finding no reason to constitutionalize the issue in this way, it reversed the Ninth Circuit.

United States v. Collins, ___ F.3d ___ (10th Cir. No. 08-3119, filed 08/04/09). Admission of all detectives' questions to defendant during an interview violated the hearsay rule, but the admission was harmless error, and the judge gave a curative instruction saying that the questions were only admitted to provide context and only the defendant's statements could be considered as evidence.

State v. Ventris, 285 Kan. 595, 176 P.3d 920 (2008), reversed and remanded Kansas v. Ventris, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-1356, filed 04/29/09). Admission of the testimony of a under cover informant (cellmate) did not violate defendant's right to counsel under the Sixth Amendment. Ventris killed Hicks. The state used a jail plant and used his testimony in rebuttal to impeach Ventris's testimony. The Kansas Supreme Court held that statements obtained in violation of the Sixth Amendment are not admissible for any purpose. Cf. Harris v. New York, 401 U.S. 22, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971).

United States v. Hernandez-Hernandez, ___ F.3d ___ (10th Cir. No. 07-2028, filed 3/21/2008). "Relevant evidence does not include the suggestion of speculative possibilities." [Citations omitted].

State v. Jackson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94578, filed 02/29/2008). A 10-12 year old girl alleged Jackson had committed sex crimes against her. Two other juveniles and the victim's stepbrother also committed sex crimes against her. The victim had also made false allegations about sexual abuse by an SRS worker in order to obtain a different placement, and said at preliminary hearing that she told a police officer she had never been touched inappropriately. The defense sought cross-examine the victim about the two juveniles and her stepbrother. The district court allowed cross-examination about the stepbrother, but held the rape shield law, K.S.A. 21-3525 prevented testimony about the juvenile's subsequent acts and its effect on the victim's behavior. The district court also did not allow inquiry regarding the prior inconsistent statement. The Court of Appeals reversed, holding the state's theory of the case made relevant the victim's emotional and behavioral problems, and denying cross-examination about the situation involving the juveniles deprived Jackson of a fair trial.

State v. Kemp, 30 Kan.App.2d 657, 663, 46 P.3d 31 (2002). Foundation for admissibility of a- video tape requires testimony that the tape accurately represents the events presented. Testimony that an admitted copy is identical to the original is insufficient. The foundation was lacking in this case, but admission of the tape was held to be harmless error. "In Kansas, the elements that constitute a proper foundation for the admission of an audiotape have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. State v. Williams, 235 Kan. 485, 491, 681 P.2d 660 (1984).

State v. Araujo, 285 Kan. 214, 169 P.3d 1123 (2007). The confrontation clause does not bar admission of testimonial statements for purposes other than establishing the truth of the matter asserted. Police responded to an assault call. The victim reported that "P.J. was threatening him." Both officers testified to the victim's statements, although the victim failed to appear in response to a subpoena. The defense objected as hearsay. The prosecution stated the statements were offered to explain why the officers focused on P.J. and to explain why they took the actions they took. Officer eventually arrested P.J. (the defendant) for drugs. The Supreme court held the statements were validly admitted for the nonhearsay purpose of explaining the course of action of an investigating officer, similar to statements made by a dispatcher. See also State v. Crowley, 220 Kan. 532, 536-37, 552 P.2d 971 (1976); State v. Ritson, 215 Kan. 742, 748, 529 P.2d 90 (1974); State v. Holloway, 214 Kan. 636, 638-39, 522 P.2d 364 (1974); State v. Vontress, 266 Kan. 248, 253, 970 P.2d 42 (1988).

State v. Palmer, No. 96165 filed 5/18/07. A defendant in a probation revocation hearing does not have the full panoply of rights due in a criminal proceeding . Morrisey v. Brewer, 408 U.S. 471 (1972). Thus, Crawford v. Washington, 541 U.S. 36 (2004) does not apply in probation revocation hearings. Although the district court erred in admitting an affidavit of a non-present and non-testifying probation officer without proof of the reliability of the affidavit, it did not violate the defendant's Sixth Amendment rights.

State v. Birth, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95658, filed 5/18/07). Where a defendant claims that a testimonial hearsay statement violated his rights under the Confrontation Clause of the Sixth Amendment, Defendant must show they did not "open the door" to such testimony. When a defendant claims that a police interview tape contains false statements, it is the defendant's duty to object at trial when they tape is shown to the jury. When a defendant says "you don't even need a confession,", that is an ambiguous statement as to whether the suspect is asserting a right to remain silent or to confer with counsel, so the interrogator may ask questions to clarify, but the interrogator is not required to clarify and may continue the questioning. Although the prosecutor's statements in closing about the state's witnesses leading "them to the truth" and the defendant's statement was "swirling in the wind," crossed the bounds, it will not result in a reversal.

Davis v. Washington, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05-5224 and 05-5705, filed 6/19/06). In No. 05-5224, a 911 operator ascertained from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis's trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording despite Davis's objection, which he based on the Sixth Amendment's Confrontation Clause. He was convicted. Lower courts held the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial.

In No. 05-5705, when police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel's bench trial for, inter alia, domestic battery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel's objection that he had no opportunity to cross-examine her.

Hershel was convicted. The lower courts held that, although Amy's affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. McCottry's statements identifying Davis as her assailant were not testimonial and were properly admitted. However, Amy Hammon's statements were testimonial. The Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing-under which one who obtains a witness's absence by wrongdoing forfeits the constitutional right to confrontation-is properly raised in Hammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon's affidavit.

State v. Dumars, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91107, filed 3/25/2005). Where state is allowed to admit hearsay that implicates the Defendant, due process requires that the court also admit hearsay statements that excuplate the defendant. Additionally, the hearsay rule is not violated when a police officer "explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received,'" [Citation omitted.] Such evidence is not admitted to establish the truth of the information received by the officer but rather to explain the reason for his approaching the scene and his subsequent conduct. [Citation omitted]. Where, however the information as related to the jury directly or by necessary inference points to the guilt of the defendant, the testimony is inadmissible. [Citations omitted.]" Also stands for the proposition that an officer's field notes are not discoverable.

State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005). Jury should not have been shown portions of interrogation tape in which Detective Hazim expressed opinions on the suspect's lack of credibility, even if they are recommended and effective police interrogation tactics. The district court's failure to give a limiting instruction, coupled with the prosecutor's misconduct during closing argument (suggesting the defendant is a lair) require a new trial.

State v. Smith, 268 Kan. 222; 238, 993 P.2d 1213 (1999). Witness who testified as to bank records need not be the custodian of the records and can testify to and admit copies of the records pursuant to K.S.A. 60-467. Witness just needs to be familiar with the record keeping process, be knowledgeable about what records mean, and that records are consistent with the actual records. K.S.A. 60-460(m) does not require that the custodian of business records lay the foundation facts for the admission of the records into evidence. The foundation facts may be proved by any relevant evidence, and the person making the entries in the records need not be called to authenticate them if the records can be identified by someone else who is qualified by knowledge of the facts. State v. Cremer, 234 Kan. 594, 601, 676 P.2d 59 (1984).

Unites States v. Gomez, ___ F.3d ___ (10th Cir. 1999). Destruction of marijuana by government was not in bad faith, and defendant failed to establish the destroyed evidence was exculpatory, therefore dismissal was not warranted. Defendant only established that it was "potentially useful."

State v. Naramore, 25 Kan.App.2d 302, ___ P.2d ___ (1998). Guilt for even the most serious crimes can be established by circumstantial evidence.

Kuhmov Tire Co. v. Carmichael, ___ U.S. ___. 119 S.Ct. 1167, 1171 (1999). Trial court’s gatekeeper obligation under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to ensure that expert testimony is relevant and reliable applies not just to testimony based on “scientific” knowledge, but also testimony based on “technical” and “other specialized knowledge,” and when specific Daubert factors are reasonable measures of reliability in particular case, court may consider them in making reliablility determination. Trial court’s decision to admit or exclude expert testimony is subject to review under an abuse of discretion standard.

State v. Diaz & Altemay, 232 Kan. 307, 315-16, 654 P.2d 425 (1982) and Landrum v. Taylor, 217 Kan. 113, 120, 535 P.2d 406 (1975). The person who takes a photograph does not have to identify the photograph for a proper foundation to be laid.


State v. Lumley, 267 Kan. 4, ___ P.2d ___ (1999). Constitutional privilege against self-incrimination only comes into play when answers could expose the defendant to prosecution for other crimes. Thus, prosecutor can call the defendant to the stand to testify in probation revocation hearings. See also State v. Aldape, 14 Kan. App. 2d 521 (1990); People v. Bell, 694 N.E.2d 673 (Ill. 1998); U.S. v. Pelensky, 129 F.2d 63 (2d Cir. 1997); State v. King, 130 Wash. 2d 517 (1996); State v. Cass, 635 N.E.2d 225 (Ind. App. 1994); State v. Burow, 223 Neb. 867 (1986); State v. Johnson, 186 N.J. Super. 423 (1982); Wilson v. State, 621 P.2d 1173 (Okla. 1980).

State v. Trammell, ___ Kan. ___, ___ P.3d ___ (No. 88722, filed 7/2/2004). In determinating whether an eyewitness identification should be excluded, the court employs a two-step analysis. First the court must determine if the procedure used for making the identification was impermissibly suggestive. If so, the court moves to the second step and considers whether the impermissibly suggestive procedure led to a substantial likelihood of misidentification. Under the second step, the court must consider the totality of the circumstances, including the witness' opportunity to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description; the level of certainty demonstrated by the witness at the confrontation; the length of time between the crime and the confrontation; the witness' capacity to observe the event, including his or her mental and physical acuity; whether the witness' identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion; and the nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly.

State v. Percival, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89498, filed 11/21/2003). Pursuant to K.S.A. 60-421, defendants in a criminal case cannot be impeached with crimes involving dishonesty or false statement unless they first put on evidence to support their credibility. Simply taking the witness stand does not put their credibility in issue.

State v. Curry, ___ Kan. App. 2d ___, ___ P.3d ___ (2001)(No. 85,401, filed June 29, 2001). A conviction of even the gravest offense may be sustained by circumstantial evidence. Specific intent may be shown by acts, circumstances, and reasonable inferences; it need not be shown by direct proof.

Daubert v. Marrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Swept aside the standard from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) which allowed evidence that enjoyed "general acceptance" in the scientific community. Daubert factors include (1) Can the expert's theory be tested? (2) Has the analysis been subjected to peer review and publication? (3) Are there governing standards, or known or potential error rates, for the expert's techniques? and (4) Has the relevant scientific community accepted the expert's theory or technique?

General Electric Co. v. Joiner, 522 U.S. 136 (1997). Trial court decisions on admissibility of scientific evidence or testimony can only be overturned for abuse of discretion.

Kumho Tire Co. v. Carmichael, 119 S.ct. 1167 (1999). Daubert goes beyond scientific witnesses to all expert testimony involving technical and other specialized knowledge.

State v. Jamison, ___ Kan. ___, ___ P.3d ___ (No. 81644, filed July 14, 2000) Evidence of gang involvement is not evidence of a crime or civil wrong under K.S.A. 60-455, and is admissible if relevant. Also, evidence of flight is admissible to show consciousness of guilt, commission of the acts charged and the intent and purpose for which those acts were committed.

State v. Aikens, 261 Kan. 346, 383, 932 P.2d 408 (1997). Exculpatory evidence tends to disprove a fact in issue that material to guilt. Evidence is material if it "might have created reasonable doubt and affected the outcome of the trial." 261 Kan. at 383.


Imbler v. Pachtman, 424 U.S. 409, ___ S.Ct. ___, ___ L.Ed.2d ___ (1976). Prosecutor is absolutely immun from activity associated with the initiating the prosecution and presentation of the state's case.

Buckley v. Fitzsimmons, 509 U.S. 259, ___ S.Ct. ___, ___ L.Ed.2d ___ (1993). While initiation of prosecution is protected by absolute immunity, action as an investigator searching for clues and corroborating facts that might give probable cause for an arrest is only entitled to qualified immunity.


State v. Patton, ___ Kan. ___, ___ P.3d ___ (No. 98,470, filed 2/1//2008). In order to give meaning to and allow the full exercise of an alleged fugitive's statutory right to counsel and right to raise defenses in an extradition proceeding under K.S.A. 22-2701 et seq., an alleged fugitive may challenge whether he or she possesses a present ability to consult with an attorney with a reasonable degree of rational understanding on the issues of whether he or she (1) is the person named in the request for extradition and (2) is a fugitive.


United States v Montoya, ___ F.3d ___ (1st Cir. No. 15-2089, filed 12/19/16). Defendant sold heroin to a confidential informant (CI) and a jury convicted him. Defendant claimed the district court erred in refusing to instruct the jury on entrapment, finding the evidence insufficient. A defendant must show "that the government induced the commission of the charged crime, and that he "lacked a predisposition to engage in [that crime]." If — and only if — the defendant makes this required "prima facie showing," id., the issue of entrapment is teed up to go to the jury. Merely showing that the government presented a person with an opportunity to commit a crime is not enough to show improper inducement. Defendant notes that he and the CI were friends and the CI played upon his heroin addiction to get the defendant to sell to him. Neither are sufficient. Additionally, the trial court did not abuse its discretion by requirement the defense to disclose by the end of the week of the pretrial conference whether they would rely on an entrapment defense.

Habeas Petitions

Greene v. Fisher, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-637, filed 11/08/11). Petitioner Eric Greene was accused of participating in a grocery store robbery that left the storeowner dead. Greene argues that statements made by non-testifying co-defendants improperly implicated him, because the trial court redacted co-defendant statements by replacing references to Greene with blanks or neutral pronouns. While Greene awaited appeal, the Supreme Court decided Gray v. Maryland, which held that obvious redactions of the kind in Greene's case do not sufficiently protect the accused. Based on this development, Greene petitioned for habeas relief. The U.S. Court of Appeals for the Third Circuit denied relief, reasoning that Section 2254(d) of the Antiterrorism and Effective Death Penalty Act does not apply because Gray was not "clearly established Federal law" during Greene's trial. Greene argues under Teague v. Lane that habeas petitioners benefit from any Supreme Court decision handed down before their convictions become final. Respondent Jon Fisher argues that the phrase "clearly established" precludes re-litigation of issues settled by state courts unless the state's decision was unreasonable in light of the law existing when the decision was handed down. The Court held that because the Pennsylvania Superior Court’s decision—the last state-court adjudication on the merits of Greene’s claim—predated Gray by nearly three months, the Third Circuit correctly held that Gray was not “clearly established Federal law” against which it could measure the state-court decision. It therefore correctly concluded that the state court’s decision neither was "contrary to," nor "involved an unreasonable application of," any "clearly established Federal law."


State v. Anderson, ___ Kan. ___, ___ P.3d ___ (No. 99123, filed 5/11/12). Jurors should not be instructed that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness identification testimony. As worded in PIK Crim. 3d 52.20, this factor prompts the jury to conclude that eyewitness identification evidence is more reliable when the witness expresses greater certainty. PIK Crim. 3d 52.20 should be modified accordingly. See also State v. Mitchell, 294 Kan. __, (No. 99163, filed 5/11/12)(same).

United States v. Curtis, ___ F.3d ___ (10th Cir. No. 02-5047, filed 9/17/2003). In court identifications were not unduly suggestive. Testimony was that a black man with gapped teeth robbed several businesses. Fact that defendant was the only black man in the courtroom during most of the trial, and order for him to display his teeth to the jury were not unconstitutionally suggestive.

State v. Wilson, 267 Kan. 530, 986 P.2d 365 (1999). An in-court identification by a trained observer (a police officer) is sufficient to establish probable cause in a preliminary hearing, even though the identification may have been influenced by a suggestive photo lineup three days after the defendant's arrest. When there is conflicting testimony at a preliminary hearing, the court must accept the version of the testimony that is most favorable to the state (quoting State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 (1996)).

State v. Reyes, 794 P.2d 853, 1988 Kan.App. LEXIS 775 (unpublished opinion filed 11/18/1988). The district court did not err in denying the defendant's motion for acquittal at the close of the state's case based on lack of an in-court identification of the defendant. Defendant was sufficiently identified for double jeopardy to attach. There is no requirement that a witness identify a defendant by pointing at him in open court if there is no possibility of mistaken identity, citing with approval State v. Seitzinger, 180 Mont. 136, 589 P.2d 655 (1979).

State v. Ward, 710 P.2d 29, 1985 Kan. LEXIS 533 (unpublished opinion filed 12/6/1985). An extrajudicial identification is material even if the witness cannot make an in-court identification, and the identification in this case was not based an on unduly suggestive photographic lineup. "The means whereby or the manner in which an identification is made related to the weight and sufficiency of the evidence rather than its admissibility." 710 P.2d at 21-22 (quoting State v. Hill, 193 Kan. 512, 516, 394 P.2d 106 (1994)). The court did not err by allowing an eyewitness to testify that defendant's build was "very similar" to the robber's build, despite the lack of an in court identification by that witness.

Ineffective Assistance of Counsel

Roe v. Flores-Ortega, ___ U.S. ___ (No. 98-1441, filed 2/23/00). Strickland v. Washington, 466 U.S. 668, provides the proper framework for evaluating a claim that counsel was constitutionally ineffective for failing to file a notice of appeal. Under Strickland, a defendant must show (1) that counsel's representation "fell below an objective standard of reasonableness," id., at 688, and (2) that counsel's deficient performance prejudiced the defendant, id., at 694. Pp. 4-15. (a) Courts must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," 466 U.S., at 690, and "[j]udicial scrutiny of counsel's performance must be highly deferential," id., at 689. A lawyer who disregards a defendant's specific instructions to file a notice of appeal acts in a professionally unreasonable manner, see Rodriquez v. United States, 395 U.S. 327, while a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following those instructions, his counsel performed deficiently, see Jones v. Barnes, 463 U.S. 745, 751. The Ninth Circuit adopted a bright-line rule for cases where the defendant has not clearly conveyed his wishes one way or the other; in its view, failing to file a notice of appeal without the defendant's consent is per se deficient. The Court rejects that per se rule as inconsistent with Strickland's circumstance-specific reasonableness requirement. The question whether counsel has performed deficiently in such cases is best answered by first asking whether counsel in fact consulted with the defendant about an appeal. By "consult," the Court means advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant's wishes. Counsel who consults with the defendant performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions about an appeal. If counsel has not consulted, the court must ask whether that failure itself constitutes deficient performance. The better practice is for counsel routinely to consult with the defendant about an appeal. Counsel has a constitutionally imposed duty to consult, however, only when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. One highly relevant factor will be whether the conviction follows a trial or a guilty plea, because a plea both reduces the scope of potentially appealable issues and may indicate that the defendant seeks an end to judicial proceedings. Even then, a court must consider such factors as whether the defendant received the sentence bargained for and whether the plea expressly reserved or waived some or all appeal rights. Pp. 5-9.

            (b) The second part of the Strickland test requires the defendant to show prejudice from counsel's deficient performance. Where an ineffective assistance of counsel claim involves counsel's performance during the course of a legal proceeding, the Court normally applies a strong presumption of reliability to the proceeding, requiring a defendant to overcome that presumption by demonstrating that attorney errors actually had an adverse effect on the defense. The complete denial of counsel during a critical stage of a judicial proceeding, however, mandates a presumption of prejudice because "the adversary process itself" has been rendered "presumptively unreliable." United States v. Cronic, 466 U.S. 648, 659. The even more serious denial of the entire judicial proceeding also demands a presumption of prejudice because no presumption of reliability can be accorded to judicial proceedings that never took place. Respondent claims that his counsel's deficient performance led to the forfeiture of his appeal. If that is so, prejudice must be presumed. Because the defendant in such cases must show that counsel's deficient performance actually deprived him of an appeal, however, he must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed. This standard follows the pattern established in Strickland and Cronic, and mirrors the prejudice inquiry applied in Hill v. Lockhart, 474 U.S. 52, and Rodriquez v. United States, 395 U.S. 327. The question whether a defendant has made the requisite showing will turn on the facts of the particular case. Nonetheless, evidence that there were nonfrivolous grounds for appeal or that the defendant promptly expressed a desire to appeal will often be highly relevant in making this determination. The performance and prejudice inquiries may overlap because both may be satisfied if the defendant shows nonfrivolous grounds for appeal. However, they are not in all cases coextensive. Evidence that a defendant sufficiently demonstrated to counsel his interest in an appeal may prove deficient performance, but it alone is insufficient to establish that he would have filed the appeal had he received counsel's advice. And, although showing nonfrivolous grounds for appeal may give weight to the defendant's contention that he would have appealed, a defendant's inability to demonstrate the merit of his hypothetical appeal will not foreclose the possibility that he can meet the prejudice requirement where there are other substantial reasons to believe that he would have appealed.


Smith v. United States, 348 U.S. 147, 152 (1954). An accused cannot be convicted solely on the basis of his own uncorroborated confession. See also United Sates v. Treas-Wilson, 3 F. 3d 1406, 1408 (10th Cir. 1993)(same).

Invited Error

State v. Hargrove, ___ Kan.App.2d ___, ___ P.3d ____ (No. 105415, filed 02/01/13). Hargrove was apprehended while attempting to break in to an occupied residence in Shawnee. The requested and given instructions on attempted aggravated burglary omitted the elements of theft. The jury convicted him of attempted aggravated burglary, but aquitted him of criminal damage to property. The Court applied the harmless error analysis, and affirmed concluding that Hargrove would have been convicted anyway. It invited Hargrove to file an ineffective asssitance claim against his lawyer in a 60-1507 motion, however.


State of Kansas v. Jose Delacruz, ___ Kan. ___ (No. 111795, filed 03/02/18, reversing 52 Kan. App. 2d 153, 364 P.3d 557 (2015)). Delacruz was convicted of aggravated robbery. The State then subpoenaed him to be a witness in the trial of Anthony Waller for crimes relating to the same incident. When Delacruz attempted to invoke his Fifth Amendment right against self-incrimination, the State said it was offering him use immunity. He continued to refuse to testify. The Reno County District Court held Delacruz in direct contempt of court for refusing to testify and threw him in jail for 108 months. The Supreme Court reversed. The court held that the State's offer of immunity against self-incrimination was not broad enough to protect Delacruz' constitutional rights. The State's offer of use immunity was incomplete and did not cover all of the possibilities in which Delacruz' testimony could have been used against him. Since the grant of immunity was not coextensive with the constitutional right against self-incrimination, the court reversed the conviction and vacated the sentence.

            "'There are three recognized types of immunity: (1) "transactional," (2) "use and derivative use," and, (3) "use." "Transactional" immunity protects the witness from prosecution for offenses to which the compelled testimony relates. This type of immunity is broader than the constitutional privilege against self-incrimination and need not always be granted, although it does, of course, constitute adequate immunity. "Use and derivative use" immunity protects the witness from the use of compelled testimony and evidence derived therefrom. It is coextensive with the constitutional privilege against self-incrimination and is therefore a sufficient grant of immunity to compel selfincriminatory testimony. On the other hand, mere "use" immunity, which only prevents the prosecution from using the compelled testimony in any criminal proceeding, is not constitutionally adequate since it does not prevent prosecuting authorities from making derivative use of the fruits of a witness' compelled testimony by obtaining investigatory leads from it.'" Cabral v. State, 19 Kan. App. 2d 456, 460-61, 871 P.2d 1285 (1994).

Van de Kamp and Livesay v. Goldstein, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-854, filed 01/26/09). Thomas Goldstein was convicted of a 1979 murder on the strength of a jailhouse informant's testimony that Goldstein had confessed to the crime. Goldstein lived nearby in a rented garage but there was no physical evidence to link him to the killing and the weapon was never found. The informant testified that he received no benefit in return, but evidence that came to light later suggesting he had struck a deal to get a lighter sentence. Two federal judges and a federal appeals panel eventually ruled that Goldstein was wrongly convicted and he was freed in April 2004. Goldstein served 24 years in prison before his murder conviction was overturned. Goldstein sued former District Attorney John K. Van de Kamp, who later became California attorney general, and his former chief deputy, Curt Livesay, claiming that as supervisors they had a policy of relying on jailhouse informants even though it sometimes led to false evidence. Individual prosecutors typically may not be sued for their decisions, but the trial judge and the 9th Circuit both said Goldstein could proceed. Van de Kamp and Livesay are asking the Supreme Court to reverse that ruling. The Court held that Petitioners are entitled to absolute immunity in respect to Goldstein’s supervision, training, and information-system management claims.

Pottawattamie County, IA v. McGhee, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1065, cert. dismissed 01/04/10). Appealed from United States Court of Appeals, Eighth Circuit (Nov. 21, 2008). In 2005, Curtis W. McGhee and Terry J. Harrington, both convicted of murder in 1978, sued Pottawattamie County, Iowa, and former county attorneys Joseph Hrvol and David Richter under 42 U.S.C. § 1983, alleging, inter alia, that the Pottawattamie prosecutors coerced false testimony from third party witnesses and then introduced that testimony in their murder trials. The prosecutors argued that they were immune from the lawsuit based on the doctrine of absolute immunity, but both the district court and the Eighth Circuit disagreed. The Supreme Court's granted review, but dismissed the petition after argument. Settled?

Van de Kamp and Livesay v. Goldstein, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-854, 01/26/09). Thomas Goldstein was convicted of a 1979 murder on the strength of a jailhouse informant's testimony that Goldstein had confessed to the crime. Goldstein lived nearby in a rented garage but there was no physical evidence to link him to the killing and the weapon was never found. The informant testified that he received no benefit in return, but evidence that came to light later suggesting he had struck a deal to get a lighter sentence. Two federal judges and a federal appeals panel eventually ruled that Goldstein was wrongly convicted and he was freed in April 2004. Goldstein served 24 years in prison before his murder conviction was overturned. Goldstein sued former District Attorney John K. Van de Kamp, who later became California attorney general, and his former chief deputy, Curt Livesay, claiming that as supervisors they had a policy of relying on jailhouse informants even though it sometimes led to false evidence. The Supreme Court reversed, holding the prosecutors were protected by absolute immunity.

Jail Time Credit

State v. Smith, ___ Kan. ___ (No. 113828, filed 05/31/19). Smith filed a motion for jail time credit (30 years after his probation was revoked,) which the district court denied. K.S.A. 2018 Supp. 21-6615, formerly K.S.A. 21-4614, requires the sentencing judge to award a defendant credit for time spent in custody while awaiting disposition of his case. State v. Denney, 278 Kan. 643, 648, 101 P.3d 1257 (2004). But "'[a] defendant is not entitled to credit on a sentence for time which he has spent in jail upon other, distinct, and wholly unrelated charges.'" Denney, 278 Kan. at 648 (quoting Campbell v. State, 223 Kan. 528, Syl. ¶ 2, 575 P.2d 524 [1978]). Summarizing the applicable principles, the Denney court held: "'The provisions of K.S.A. 21-4614 are mandatory and require that a criminal defendant sentenced to incarceration be given credit for all time spent in custody solely on the charge for which he is being sentenced.'" The Supreme Court held the nunc pro tunc provision in K.S.A. 22-3504(2), which states"Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders," means Kansas courts, with some exception, have jurisdiction to determine whether a clerical error occurred even after the time for an appeal has passed. Here, that means courts can consider Smith's motion. But Smith failed his burden to show a clerical error occurred.

Judge's Role In a Jury Trial

State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 113228, 03/10/17). It is structural error for a trial judge to sleep during a criminal trial. Although Daquantrius S. Johnson's lawyer decided not to request a mistrial, Johnson's firearm convictions must be reversed because the trial judge fell asleep during his trial.

State v. Kemble, ___ Kan. ___, ___ P.3d ___ (No. 100824 filed 09/03/10).

"The trial judge is not merely a moderator, but is the governor of the trial." State v. Hamilton, 240 Kan. 539, 545, 731 P.2d 863 (1987). As such, the trial judge "must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant. [Citation omitted.]" 240 Kan. at 545. In that regard, a trial judge should be cognizant that jurors afford the presiding judge a great deal of respect and "'can be easily influenced by the slightest suggestion coming from the court, whether it be a nod of the head, a smile, a frown, or a spoken word.'" 240 Kan. at 545 (quoting State v. Wheat, 131 Kan. 562, 569, 292 Pac. 793 [1930] [Jochems, J., dissenting]). Decades ago, this court warned:

"A juror is prone to watch any indication by the judge as to how he regards any part of the testimony or the credibility of a witness and for that reason a trial judge must scrupulously avoid the slightest indication as to his personal feelings concerning the matter in issue."

State v. Winchester, 166 Kan. 512, 518, 203 P.2d 229 (1949).

On the other hand, "a trial court must control the proceedings in all hearings and trials and . . . has broad discretion and leeway in doing so." Hamilton, 240 Kan. at 547. Moreover, this court has permitted a trial judge to examine witnesses based upon the premise that one of the functions of a trial judge is to accomplish the full development of the truth. State v. Hays, 256 Kan. 48, 51, 883 P.2d 1093 (1994). However, even where affirming an examination from the bench, we have cautioned:

"'If a trial judge believes that additional information should be obtained from a witness in order to clarify the evidence and enable the jury to arrive at the true facts, the better practice is for the trial judge to discuss the matter with counsel outside the presence of the jury and request counsel to pose the questions to the witness.'" Hays, 256 Kan. at 52 (quoting State v. Boyd, 222 Kan. 155, Syl. ¶ 2, 563 P.2d 446 [1977]).

If a trial judge eschews the better practice and examines a witness in front of the jury, the examining judge "'must exercise great care to prevent giving the jury the impression that [the judge] is biased against the defendant and [the judge] must not forget the function of a judge and assume that of an advocate.'" Hays, 256 Kan. at 52 (quoting Boyd, 222 Kan. 155, Syl. ¶ 1).

Jurisdiction - Municipal Courts

City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997). Cities may not prosecute third or subsequent DUI offenses in municipal court because state law (K.S.A. 1996 Supp. 8-1567(f) makes such offenses felonies. Pursuant to K.S.A. 22-2601, felonies may only be prosecuted in the district courts. K.S.A. 1996 Supp. 8-1567(m) does not allow cities to omit the severity classification of a crime designated as a felony in a state statute that uniformly applies throughout the state and punish those offenders in municipal court.

Jurisdiction and Venue

State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98707, filed 09/19/08/08). Approximately one month after a suspect's arrest for having sex with his daughter, Defendant took the daughter to New Mexico so she wouldn't be able to testify. Johnson pled to aggravated intimidation of a witness, but then sought to withdraw her plea, saying her crime was committed in New Mexico, not Kansas. The Court rejected her argument finding the crime was partially committed in Kansas, and thus jurisdiction and venue were proper under 21-3104 and 22-2602.

Guillory v. State, ___ Kan. ___, ___ P.3d ___ (No. 96,610, filed 11/2/2007). State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), does not apply to excuse a late-filed notice of appeal from summary denial of a K.S.A. 60-1507 motion. Ortiz only applies in direct appeals or two other limited circumstances.

State v. Woolverton, 284 Kan. 59, 159 P.3d 985 (2007). Defendant and his baby's mama became involved in a telephone disagreement when defendant was late for visitation. Defendant, who was in Missouri, called the baby's mama in Overland Park and called her a "fucking whore" and threatened to "fucking kill her." He was convicted of criminal threat and phone harassment. On appeal the Supreme Court held that (1) defendant's prior criminal threat conviction was improperly admitted at trial but the error was harmless; (2) Kansas had jurisdiction to prosecute even though the threats were uttered in Missouri and (3) no Miranda violation occurred because defendant was not in custody when interviewed in the stairwell of his apartment, even though the detectives had stated they would seek a warrant if he did not cooperate. Detectives informed him that he would not be arrested and could return to his apartment after the interview.

Jury Instructions

State v. Barrett, ___ Kan. ___ (No. 113767, filed 06/07/19). In 2008, Howard Barrett attacked and killed a man who entered his apartment to exterminate bugs. The evidence at trial showed that Barrett suffered from schizophrenia and felt irrationally threatened by the victim. Barrett made statements to police to the effect that he had to protect himself from the person spraying hazardous chemicals and waste in his apartment. The key question for the jury was whether Barrett's mental condition precluded him from forming a culpable mental state. See K.S.A. 22-3220 ("It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged."). The jury found Barrett guilty of reckless second-degree murder. Barrett argued the district court committed reversible error when it denied his request for an instruction on imperfect self-defense voluntary manslaughter—an intentional killing done with the unreasonable but honest belief that circumstances existed justifying deadly force. The Supreme Court agreed and reversed his conviction. It reversed the Court of Appeals decision to hold the error harmless based on the "skip rule."

When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.''' State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004) (adopting the rule and coining the term for the first time in Kansas), overruled on other grounds by State v. Neighbors, 299 Kan. 234, 328 P.3d 1081 (2014). But in recent years, we clarified that the skip rule is not, in fact, a hard and fast rule. Instead, it is "'simply a logical deduction that may be drawn from jury verdicts in certain cases.'" (Emphasis added.) State v. Plummer, 295 Kan. 156, 169, 283 P.3d 202 (2012). Moreover, we cautioned courts to make this deduction only where it "reasonably (as opposed to mechanically) applies." Williams, 303 Kan. at 600; see State v. Pulliam, 308 Kan. 1354, 1370, 430 P.3d 39 (2018) (declining to "mechanically apply the skip rule").

It reasonably doesn't apply here. The majority adopted the reasoning of Judge Arnold Burger's dissent, which traced the history of the skip rule and correctly noted that we have often discussed the rule along with finding the evidence was insufficient to support the disputed instruction. 2016 WL 4262478, at *16 (Arnold-Burger, J., dissenting); see, e.g., State v. Engelhardt, 280 Kan. 113, 135-36, 119 P.3d 1148 (2005). "We hold the failure to give the imperfect self-defense voluntary manslaughter instruction was not harmless because there is a reasonable probability that it affected the outcome of Barrett's trial. At trial, no one disputed that Barrett was suffering from untreated schizophrenia when he killed James. That much was clear. The key question was whether Barrett's mental illness prevented him from forming a culpable mental state. Under the definition applicable to Barrett, imperfect self-defense voluntary manslaughter was not just an intentional murder, but one based on "an unreasonable but honest belief

that circumstances existed that justified deadly force." K.S.A. 21-3403(b).

State v. Flynn, ___ Kan. ___, ___ P.3d ___ (No. 103566 filed 07/11/14). When a defendant is charged with rape as defined in K.S.A. 21-3502(a)(1) for an offense committed before July 1, 2011, and the evidence presented at trial suggests the victim initially consented but withdrew consent after penetration, the trial court must instruct the jury as to the elements of rape and give an additional instruction. Namely, the court must instruct the jury that the defendant may be convicted of rape even though consent is given to the initial penetration, but only if the consent is withdrawn, the withdrawal of consent is communicated to the defendant, and the defendant continues the intercourse through compulsion. The holding from State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006), that in a case involving post-penetration withdrawal of consent the defendant is entitled to a "reasonable time" in which to act after consent is withdrawn and communicated to the defendant is disapproved.

State v. Williams, ___ Kan. ___, ___ P.3d ___ (No. 108586, filed 07/03/14). Defendant participated as one of the "wheel women" in a murder and was convicted of felony murder. She alleged the trial court erred by giving a no-sympathy instruction. The Supreme Court held that even if we were to find that the no-sympathy instruction was not factually appropriate in this case, giving it did not constitute reversible error because there was no reasonable possibility that the error contributed to the verdict.

State v. Wilson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103082, filed 02/04/11). The giving of a post-Salts, Allen instruction (P.I.K. Crim. 3d 68.12) in the initial instructions to the jury was not error.

State v. Hendrix, ___ Kan. ___, ___ P.3d ___ (No. filed 2009). Defendant was not entitled to a self-defense instruction where he used no actual force. Defendant and his sister were visiting their mom in the hospital when an argument broke out. Under defendant's theory, she approached him aggressively and he threatened to "break her neck." According to the victim, Defendant pulled a knife on her and threatened to kill her. Both parties agreed on the complete absence of physical force by either. Defendant requested PIK Crim. 3d 54.17 (self defense) in his prosecution for criminal threat. The Supreme Court held that the self defense instruction should be given only where the defendant uses actual, not just threatened force. Davis and Luckert dissent.

State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009). Inclusion of the language "[a]nother trial would be a burden on both sides," in PIK Crim. 3d 68.12 is error, and the committee is instructed to strike it from the instruction.

State v. Richardson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98.572, filed 10/24/08). Richardson fled when a police officer tried to stop him for failing to signal a turn. He committed 14 violations during the pursuit, which was captured on video and shown to the jury. Richardson alleged the jury instruction for felony fleeing and eluding should have defined the five or more traffic violations he allegedly committed during the pursuit. The Court of Appeals agreed, but found that in light of the other evidence in this case, the court's failure to do so was harmless. PIK Crim. 3d. 70.09 should suggest defining the violations and moving violations. The Court also rejected Richardson's arguments that fleeing, reckless driving and driving while suspended were multiplicitous, and his argument that the court should have instructed on the five moving violations as lesser included offenses.

Jury trials; procedure

State v. Gray, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101481, filed 03/18/11). A jury verdict rendered and announced in open court that does not follow the statutory mandate of K.S.A. 22-3421, requiring the trial court to inquire whether the verdict is the jury's verdict, is reversible error.

Jury trial; waiver

State v. Pittenger, ___ Kan.App.2d ___ (No. 121717, unpublished, filed 10/30/2020). The State charged Pittenger with two class B misdemeanors. Each of these offences carried a maximum punishment of six months in jail. See K.S.A. 2018 Supp. 21-5709(b)(2) (possession of drug paraphernalia); K.S.A. 2018 Supp. 21-5706(b)(7) and (c)(3)(A) (possession of THC); K.S.A. 2018 Supp. 21-6602(a)(2) (restricting the maximum term of confinement for class B misdemeanors to six months). As such, because the charges brought against Pittenger were "petty offenses" as defined by Kansas law, he did not have a constitutional right to a jury trial for these offenses. See Duncan v. State of Louisiana, 391 U.S. 145, 159-161, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); State v. Shannon, 258 Kan. 425, 435-36, 905 P.2d 649 (1995); State v. Woolverton, 52 Kan. App. 2d 700, 701-02, 371 P.3d 941 (2016).

State v. Williams, ___ Kan.App.2d ___ (No. 120099, filed 10/04/19). Williams entered into a diversion agreement on charges of criminal threat and a misdemeanor charge for disorderly conduct. The agreement apparently did not contain a wavier of the right to a jury trial. When Williams failed to pay for his diversion, the court found him guilty on stipulated facts and imposed sentence. The Court of Appeals reversed the convictions. A waiver of the right to a jury trial will not be presumed from a silent record. A court will not accept a jury trial waiver unless the defendant, after being advised by the court of his or her right to a jury trial, personally waives that right, either in writing or in open court. It is the district court's responsibility to advise a defendant of the nature and extent of the right to a jury trial. The responsibility to inform the defendant of his or her jury trial right rests squarely with the presiding judge. The advisement of the jury trial right must come from the court itself. A district court's failure to comply with the requirement to advise a defendant of his or her right to a jury trial on the record requires reversal and remand.

State v. Harris, ___ Kan.App.2d ___ (No. 117362, filed 05/11/18). Harris was getting booked into jail on a warrant and had some weed on him. At his arraignment on his possesion charge, acting pro se, Harris pled not guilty and when asked if he wanted a jury trial or bench trial, he responded, "Go with the judge. I want the bench." Harris appealed his conviction and 24-month sentence claiming he did not properly waive his right to a jury trial. The Court of Appeals disagreed, holding that even when the district court failed to explain all the particulars surrounding the right to a jury trial, under the facts of this case, the defendant was appropriately advised of his right to a jury trial, and his waiver of his right to a jury trial was knowingly and voluntarily made.

State v. Mullen, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110468, filed 05/01/15). Mullen agreed to a bench trial on stipulated facts, and the stipulation contained a waiver of jury trial, but the district court failed to personally advise Mullen of his right to a jury trial, and Mullen did not personally waive his right to a jury trial on the record. Since the record is silent on both points, the court reversed his conviction for possession of marijuana with intent to distribute and remand the case for further proceedings for the district court to explain on the record to Mullen his right to a jury trial.

State v. Raikes, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108809, filed 11/22/13). Even though Raikes waived his right to jury trial in a drug court diversion agreement, the Court held the waiver was ineffective, the conclusion being compelled by the Supreme Court's decision in State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975). Raikes drove without a tag light and was DUI with an open container and had drugs in the car. He pled to the DUI and agreed to drug court diversion. The problem was that Raikes was advised of his right to a jury trial only with respect to his DUI charge (at the plea hearing), not for his prosecution for possession or control of a hallucinogenic drug. Malone, J. dissents, saying the majority was splitting hairs by concluding that Raikes' jury trial waiver only applied to the DUI charge and not to the drug charge. Ironically, Raikes failure to complete drug court jacked him up. Had he successfully completed drug court, he would only have a DUI conviction. But since he stipulated to all the facts and the majority result remands the case to the district court to hold a jury trial on stipulated facts, a result that the majority acknowledges would seem to lead to an inevitable conviction by any rational factfinder.

Jury Selection

State v. Crabb, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110673, filed 02/06/15). Selection of a jury in a felony case using a "hot box" method over defendant's objection rather than the method set out in K.S.A. 22-3411a is reversible, non-harmless error. The hot box method requires counsel to exercise their peremptory challenges piecemeal rather than in comparison to the entire panel, and since the final juror is seated only after all peremptories, the final juror seated may only be removed for cause.

State v. Lewis, ___ Kan.App.2d ___, ___ P.3d ___ (No. 94,837, filed 7/13/2007). Defendant failed to establish that Sedgwick county's failure to compel jury service caused a disparity in the representation of minorities in the community. Additonally, the district court did not err in affirming a Batson challenge to a young, unemployed nursing student who visited the crime scene four times per week.

Jury Nullification

State v. Albano, ___ Kan.App.2d ___ (No. 120767, filed 04/10/2020). The district court does not undermine the jury's power of nullification by instructing the jury that it "must" follow the law and that it is the jury's "duty" to do so; following State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019).

State v. Boeschling, ___ Kan. ___ (No. 116757, filed 02/14/2020). Boeschling and a friend burglarized a restaurant and stole a pickup truck. Police also discovered that Boeschling owned two guns despite being prohibited from owning firearms because of a previous adjudication. The State tried Boeschling for all these offenses in one trial. The jury convicted Boeschling on all counts. During deliberations, the jury asked if jury nullification could apply to the gun counts. The judge answered, "You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case." Boeschling appeals, arguing that the district court judge's response to the jury's mid-deliberation question about jury nullification was reversible error. The Supreme Court disagreed. The Court said that giving Boeschling's proposed answer, "yes," would have run afoul of this court's long-stated rule that juries cannot be instructed on nullification. See State v. McClanahan, 212 Kan. 208, Syl. ¶ 4, 209, 510 P.2d 153 (1973).

Silvers v. State, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,869, filed 1/11/2008). "Clearly, criminal defendants are not entitled to have the jury instructed on jury nullification, but the jurors in a criminal case have the clear ability to disregard both the rules of law and the evidence in order to acquit a defendant." (Syl. ¶ 3, quoting State v. Mclanahan, 214 Kan. 208, 215-17, 510 P.2d 153 (1973)). When jury nullification is presented haphazardly or in preference for other defenses with a likelihood of success, appellate courts have concluded such attorneys were ineffective. In this case, Defendant and a friend plied a 13-year old female victim with alcohol, marijuana and an unidentified pill. The victim passed out and when she awoke, one man was penetrating her vaginally and the other was about to place his penis in the victim's mouth. The victim could not identify which man was on top of her. Defendant's semen was located in the victim's anus and on her underwear. Defendant was charged with rape of a child under 14 and aggravated criminal sodomy with a child under 14. He admitted to anal sex with the victim. His defense was that he thought the victim was old enough and that she consented. The jury acquitted him of rape, but convicted him of aggravated criminal sodomy. The court could not conclude that trial counsel's nullification strategy was ineffective.

Jury Trial, Right To

State v. Bowers, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,805, filed 09/25/09). Counsel request for a bench trial is not a valid waiver of the right to jury trial. A defendant must either waive in open court or in writing.

State v. Jones, 19 Kan.App.2d 982, 984, 99 P.3d 1141 (1994). Defendant has a right to a jury trial if the offense charged is punishable by imprisonment for more than six months, even if the request is late when considered by the seven-day standard in K.S.A. 22-3404(1). If the right to a jury trial exists, any waiver must a personal waiver on the record or in writing. See also State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975).

Juvenile Offenders

In the Matter of L.M., ___ Kan. ___, ___ P.3d ___ (No. 96,197, filed 6/2008). Juvenile offenders have a constitutional right to a jury trial.

Malicious Prosecution

Hartman v. Moore, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 04–1495, filed 4/26/2006). A plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges. Prosecutors are entitled to absolute immunty.

Bezona v. Tomson, 25 Kan.App.2d 210, ___ P.2d ___ (1998). Element of claim are: (1) The defendant initiated, continued, or procured the proceeding of which complaint is made; (2) the defendant in doing so acted without probable cause; (3) the defendant acted with malice; (4) the complained-of proceedings terminated in favor of the plaintiff; and (5) plaintiff sustained damages.

Lab Fee

State v. Aguilar, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,992 filed 10/02/09). In order to assess a lab fee pursuant to K.S.A. 2008 Supp. 28-176(a), the defendant must be charged with and convicted of a drug-related offense.


State v. Coburn, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,210, filed 2/1/2008). The district court erred in allowing one trial on six counts of aggravated indecent liberties with a child and one count of sexual exploitation of a child that occurred on a different date. The former charges involved allegations of improper touching of minor granddaughters, while the latter involved illegal possession of child pornography. The district court should have granted a motion to sever because the offenses were not related and evidence of the latter may have prejudiced the jury on the former.

Multiple Acts - Juror Unanimity Required

State v. Shaw, 47 Kan.App.2d ___, 281 P.3d 576 (No. 106015, filed 7/20/12). Shaw was drunk and killed a motorcylist in a collision. The State charged Shaw with involuntary manslaughter while driving under the influence of alcohol or drugs, in violation of K.S.A. 21-3442. The state presented evidence the motorcyclist was not speeding. The defense presented evidence that he was. Shaw argued that his convictions should be reversed because the district court instructed the jury on alternative means of committing the crime and the State failed to present sufficient evidence of each alternative means. Shaw also contended that the district court violated his constitutional rights by sentencing him based in part on his criminal history (3 prior DUIs) without first requiring that the criminal history be alleged in the complaint and proven beyond a reasonable doubt to a jury. The court reverses the involuntary manslaughter conviction because, the jury could have convicted Shaw based on an alternative means not supported by the evidence, i.e., involuntary manslaughter committed in flight from a DUI. The court did not address the criminal history issue since it reversed and remanded for a new trial.

State v. Nels F. Baatrup, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,186, filed 10/03/08). The state charged Baatrup with both DUI under 8-1567 (a)(2) (over 0.08) and (a)(3) (incapable of safetly driving). The court instructed PIK Crim. 3d 70.01-B, instructing the jury it was one crime and to sign the verdict form upon which they agreed. The jury signed both. The state argued that State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007) didn't require unanimity so long as the jury agreed the defendant was guilty. The Court rejected the argument, holding that unanimity is required on a multiple acts case as opposed to a alternative means case. Stevens was an alternative means case (operating v. attempt to operate).


State v. Harris, ___ Kan. ___, ___ P.3d ___ (No. 95,723, filed 7/13/2007). Defendant went on a crime spree killing four people in various locations on the same date. He was charged with four counts of capital murder based on killing more than one victim and was convicted of three of them. The Supreme Court held that two of the convictions were multiplicitous and he could only be convicted of one count of capital murder. It did, however, hold that his confession was voluntary despite detectives encouragement to tell the truth. Defendant voluntarily turned himself in, had an 11th grade education, gave appropriate responses and did not appear to be under the influence. He was interviewed for about 2.5 hours and was given breaks. He was not restrained. He was told that his cooperation would be brought to the DA's attention and it was.

City of Wichita v. Edwards, 23 Kan.App.2d 962, 939 P.2d 942 (1997). Evidence required to prove ethnic intimidation was also necessary to prove battery and disorderly conduct, therefore convictions of all three are multiplicitious.

Objections, Must be Timely and Specific

State v. McCaslin, ___ Kan. ___, ___ P.3d ___ (No. 99628, filed 01/24/11). Defendant objected at trial to a question about whether defendant would be surprised that a friend of the murder victim said the victim would never sleep with the defendant. The asserted basis for the objection was referring to facts not in evidence. It was overruled. On appeal, McCaslin claimed the evidence violated his rights under the confrontation clause. The Supreme Court held the issue was not preserved for appeal. While the trial objection was timely, it was not specific.

Ordinance, Interpretation Of

Steffes v. City of Lawrence, 284 Kan. 380, 385, 160 P.3d 843 (2007). The interpretation of statutes and ordinances is a question of law. See also City of Wichita v. Hackett, 275 Kan. 848, 850, 69 P.3d 621 (2003). "The fundamental rule of statutory interpretation is that a court must give effect to the intent of the [governing body] as expressed." Polson v. Farmers Insurance Co. Inc., ___ Kan. ___, Syl. ¶ 2, 200 P.3d 1266 (2009). If the language of a statute or ordinance “is plain and unambiguous, a court must give effect to that language rather than determine what the law should be, speculate as to [the governing body’s] intent, add something not readily found in the statute, resort to canons of statutory construction, or consult legislative history.” Id.

Ordinance, Conflict with Statute

State v. Graham, 19 Kan.App.2d 341, 343, 868 P.2d 1245 (1994). K.S.A. 8-2001 requires all city traffic ordinances to be in conformity withy the state traffic statutes unless expressly authorized. Thus, the court must consider all city traffic ordinances in substantial conformity with the equivalent state traffic statutes. Accordingly, a city traffic ordinance of this state shall be accorded a presumption to substantial conformity with its equivalent state statute until shown otherwise. The defendant has the burden of making a prima facie showing of the nonconformity of the city ordinance with the state statute.

Probation Revocation

State v. Curtis, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,474, filed 06/19/09). Curtis was sentenced to probation on drug charges, then violated on four different occasions. The state timely filed three motions to revoke, but asked the court to dismiss proceedings on the first two and never acted on the third. The state filed one motion after Curtis' probation term expired, and the district court eventually granted it. The Court of Appeals held the district court had no jurisdiction to act on the motion because the state never set the third one for action, violating Curtis' right to due process.

State v. White, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99865, filed 05/08/09). Judge Dowd revoked White's probation for failure to pay without considering whether the probationer willfully refused or was responsible for the failure to pay or whether the probationer made a bona fide effort to acquire the resources to pay. Imprisonment may be used as a means to enforce collection of fines or court costs or restitution when the probationer willfully refuses to pay, although he has the means to pay, or he does not make a bona fide effort to acquire the resources to pay. If, however, the sentencing court determines that the probationer made a bona fide effort or is not at fault in failing to pay, the court should then consider alternative measures of punishment to imprisonment. Only if the alternative measures are inadequate to meet the State's interests in punishment and deterrence may the court imprison a probationer despite his bona fide effort to pay. Alternatives to imprisonment that have been suggested include reduction of the fine imposed, extension of time to pay, and performance of public service tasks in lieu thereof. Revocation reversed.

State v. Uhlig, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96663, filed 11/2/07). Uhlig was on probation, and a condition allowed warrantless searches by a court services officer (CSO). The CSO found ecstasy in Uhlig's bedroom. Uhlig claimed a Fourth Amendment violation. The Court of Appeals held the search was justified by reasonable suspicion since Uhlig delayed the officer's entry into his bedroom. The Court also held that Uhlig was not in custody, so no Miranda warning was required.

State v. Baldwin, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95402, filed 1/26/2007). Once probation expires without being extended, a district court has no jurisdiction to revoke it. Although the state timely requested a revocation, the judge said he would allow the defendant to "continue . . . in community corrections," and did not extend probation. Thus, probation expired 24 months after imposition of sentence, despite a journal entry saying probation was revoked and defendant was ordered to Labette. The spoken sentence controls over the written sentence.

State v. Williams, 20 Kan.App.2d 142, 884 P.2d 743 (1994). A district court has jursidition to revoke probation as long as proceedings are commenced before the expiration of the probation term.

State v. Garcia, ___ Kan.App.2d ___, ___ P.3d, ___ (No. 89006, filed 3/14/2003). District court revoked, then reinstated probation on condition that defendant successfully complete boot camp. He graduated from boot camp, but with marginal results. District court determined defendant had not complied with probation conditions and sent defendant to prison. Court of appeals held that graduation from boot camp equals successful completion, and absent any other violation, district court had no jurisdiction to revoke probation. Revocation was reversed and case remanded with directions to reinstate probation.

Plea Bargaining

State v. Beck, ___ Kan. ___ (No. 115219, filed 12/08/17). "[I]n Kansas both parties to a plea agreement assume the risk the sentencing court will impose a sentence different than the sentence recommended as part of the plea agreement because sentence recommendations made pursuant to a plea bargain are not binding on the trial court."

State v. Boley, 279 Kan. 989, 996, 113 P.3d 248 (2005).

State v. Richmond, 21 Kan. App. 2d 126, 896 P.2d 1112 (1995) and State v. Marshall, 21 Kan. App. 2d 332, 899 P.2d 1068 (1995). Where a defendant enters a plea of guilty in exchange for the prosecutor’s promise regarding sentence recommendation, an implied condition exists that circumstances surrounding the plea agreement will remain substantially the same, and a subsequent change is sufficient to relieve the State of its obligation. A violation of the conditions of suspended sentence and/or commission of an additional crime constitutes a change in circumstances sufficient to release the State from its part of the plea agreement in subsequent proceedings.

State v. Anziana, 17 Kan. App. 2d 570, Syl. ¶3, 840 P.2d 550 (1992). "A written plea agreement is not a substitute for the court’s compliance with the statutory requirements. See also State v. Moses, 280 Kan. 939, 948, 130 P.3d 69 (2006). "Although written plea agreement acknowledgments are encouraged, ‘such an acknowledgment is emphatically not a substitute for the requirements of K.S.A. 22-3210,’” citing State v. Browning, 245 Kan. 26, 34, 774 P.2d 935 (1989).

State v. Boswell, 30 Kan. App. 2d 9, 37 P.3d 40 (2001), rev. denied, 276 Kan. 970 (2003), and State v. Boley, 279 Kan. 989, 130 P.3d 69 (2005). Application of fundamental contract principles is generally the best means to fair enforcement of a criminal plea agreement. Such agreements are not binding on the court, however.

State v. Woodling, 264 Kan. 684, 688, 957 P.2d 398 (1998). A plea agreement reasonably susceptible to different interpretations is ambiguous and must be strictly construed in favor of the defendant.

State v. Scheuerman, 32 Kan. App. 2d 208, 82 P.3d 515 (2003). A plea agreement whereby the defendant is required to enter a plea to one count of a multiple-count complaint as a condition to being granted diversion on another count of the complaint does not run afoul of the provisions of K.S.A. 22-2910, which provides, “No defendant shall be required to enter any plea to a criminal charge as a condition for diversion.”

State v. McDonald, 29 Kan. App. 2d 6, 26 P.3d 69 (2001).“…[W]hen it is clear from the record that a defendant entered a guilty plea in reliance on the State’s promise to recommend a specific disposition at sentencing, and the State fails to deliver, at a minimum the case must be remanded for resentencing before a different judge, and the State must specifically perform.”

State v. Patton, 37 Kan.App.2d 166, Syl. ¶ 4, 152 P.3d 1262 (2007). Written waiver of appeal in a plea agreement is enforceable when given in exchange for a sentence reduction and dismissal of additional charges.

State v. Williams, 37 Kan.App.2d 404, 153 P.3d 566 (2007). K.S.A. 21-4721(c) precludes review a presumptive sentence agreed to in a plea bargain.

Porter v. State, 37 Kan.App.2d 220, Syl. ¶ 4, 152 P.3d 89 (2007). A defendant is presumed to have known his or her criminal history when entering into a plea agreement.

State v. Chetwood, ___ Kan.App.2d ___, ___ P.3d ___ (No. 96,716, filed 11/2/2007). The state breached its plea agreement to recommend residential community corrections when the prosecutor introduced a community corrections officer to the court who recommended a prison sentence.

McPherson v. State, 38 Kan.App.2d 276, ___ P.3d ___ (No. 96,314 filed 8/10/2007). Defendants can plea to hypothetical crimes as long as they benefit. They must (1) be initially brought into court on a valid pleading; (2) receive a beneficial plea bargain; and (3) voluntarily and knowingly enter into the plea. McPherson was charged with attempted 1st degree murder and kidnapping and was facing a maximum sentence of 283 months. He pled to attempted second degree unintentional murder and received a 102 month sentence. He later moved to set aside the plea alleging that Kansas does not recognize second degree unintentional murder. See North Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

United States v. Scott, ___ F.3d ___ (10th Cir. No. 05-6082, filed 7/31/2006). The prosecutor agreed to a base level 23 offense (transportation of a juvenile in interstate commerce for prostitution) resulting in a presumptive 46 to 57 month sentence. The plea agreement stated: "Based upon the information that is known to the parties on the date that this agreement is executed, the positions they expect to take at sentencing with respect to the United States Sentencing Guidelines will include that (1) the offense occurred before April 30, 2003; (2) the offense involved a commercial sex act and the use of coercion; (3) the victim's age was between 12 and 16 yers; and (4) the defendant should receive a 2 level downward adjustment for acceptance of responsibility." Before sentence, the trial court sua sponte notified the parties that it was considering two other increases for a vulnerable victim and a leadership role in the offense. The prosecutor then filed a "Motion for Upward Departure." The court applied the two increases which adjusted the range to 70-87 months, and the court imposed a 120 month sentence. The 10th Circuit, one judge dissenting, held that the government breached its plea agreement by arguing for sentence enhancements, and reversed the sentence. It agreed with the defendant's argument that the plea terms "implied that the government would not argue for other sentence enhancing factors, or at least that such an inference should be drawn because that was his reasonable expectation from the agreement."

State v. Boley, ___ Kan.App.2d ___, ___ P.2d ___ (No. 91804, filed 8/20/2004). Where a defendant has successfully challenged a sentence for a conviction subject to a plea on the basis that the sentence impermissibly increases the defendant's term of imprisonment beyond that permitted by law (based on State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004)), and resentencing would effectively frustrate the State's purpose in entering the plea agreement (the parties agreed on severity level 1 offense as opposed to a severity level 3), the State may, in its discretion, withdraw from the plea agreement or choose to perform under the plea agreement as modified.

Furthermore, where there is a mistake of law in a plea agreement, the risk of the mistake may fall to the State, which is presumed to be in a better position to know the applicable law. See United States v. Barron, 172 F.3d 1153 (9th Cir. 1999); Coy v. Fields, 200 Ariz. 442, 27 P.3d 799 (App. 2001). Under the circumstances of this case, the State could not know our Supreme Court would rule that K.S.A. 65-4159(a) and K.S.A. 65-4161(a) proscribed identical conduct. As such, it is inequitable to apply such a presumption in this case.

. . .

If the State chooses to withdraw from the plea agreement, double jeopardy provides no impediment to refiling such charges dismissed from the original complaint. "Upon restoration of the status quo ante, the plea agreement no longer [binds] the parties. Therefore, no obligation [remains] which [prohibits] the government from reinstating the previously dismissed charges." Bunner, 134 F.3d at 1005. See United States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998); United States v. Podde, 105 F.3d 813, 817 (2nd Cir. 1997); Caban, 318 Ill. App. 3d at 1090; Mazzone, 212 W.Va. at 372-73.

State v. McCray, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89,726, filed 4/9/2004). In determining whether good cause has been shown to permit withdrawal of a plea under K.S.A. 2003 Supp. 22-3210(d), the district court must consider the following factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced mistreated or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. Here the plea agreement was reviewed by a judge prior to entering it. It is the better practice for a judge not to get involved in any plea negotiations or discussions even if the judge recuses himself from further judicial duties in the matter. And while courts should take special care when taking a plea from a mentally retarded person, "the operation of the criminal justice system depends on a predictable quantity of plea bargaining, and for many defendants, a plea bargain appears to be the only substantial hope of reducing their sentence."

State v. Compton, 233 Kan. 690, 695, ___ P.2d ___ (19__). The anti-plea bargaining statute does not prohibit pleas when the purpose the plea bargain - and its ultimate effect - is not to permit the accused to avoid the mandatory DUI penalties.

Plea, Judge's Role in Plea Bargaining

United States v. Davila, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-167, filed 06/13/13). On February 8, 2010, a magistrate judge held a hearing with the defendant, Anthony Davila, and his attorney. At the hearing, the judge encouraged Davila to plead guilty, and on May 11, 2010, Davila pled guilty to the charges. On appeal, Davila successfully argued that the judge’s encouragement constituted a violation of Federal Rules of Criminal Procedure (“FRCP”) 11(c)(1), which generally prohibits the judge from participating in plea-bargaining. The Supreme Court granted certiorari to determine whether any judicial participation in plea-bargaining, as opposed to "prejudicial" participation, mandates automatic reversal of a conviction. The Court held that a rule 11 violation occurred, but that it did not require automatic reversal.

Plea, Motion to Withdraw

State v. Herring, ___ Kan. ___ (No. 118648, filed //2020). When a district court applies the wrong legal standard to its consideration of a plea withdrawal for good cause under K.S.A. 2019 Supp. 22- 3210(d)(1), it is an abuse of discretion. State v. Aguilar, 290 Kan. 506, Syl. ¶ 2, 231 P.3d 563 (2010). In ruling on the plea withdrawal, the district court considered Herring's claims in light of K.S.A. 2019 Supp. 22-3210(d)(1) and the three nonexclusive factors set out in State v. Edgar, 281 Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006). The court stated, "The Edgar factors are, one, whether the defendant was represented by competent counsel, [two] whether the defendant was misled, coerced, mistreated or unfairly taken advantage of and, three, whether the plea was fairly and understandingly made." As to the first Edgar issue, which is the one relevant for this appeal, the court stated: "[To address the first factor,] I considered the two-prong test in Strickland v. Washington, 466 U.S. 668, [104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. The Supreme Court reversed. Under Aguilar, when a defendant moves to withdraw a plea after sentencing, a district court must use the ineffective assistance standard under Strickland to consider the first Edgar factor. But when the same motion is made before sentencing, the court applies the lower "lackluster advocacy" standard. As the Aguilar court explained:


"It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause standard governing a presentence plea withdrawal motion to the high constitutional burden. The Edgar factors do not transform the lower good cause standard of the statute's plain language into a constitutional gauntlet. Merely lackluster advocacy . . . may be plenty to support the first Edgar factor and thus statutory good cause for presentence withdrawal of a plea." (Emphasis added.) 290 Kan. at 513.

State v. Adams, ___ Kan. ___ (No. 120475, filed 06/12/2020). Postsentence, a plea of guilty or no contest may be set aside only upon a proper showing of manifest injustice. To determine whether a defendant has shown manifest injustice necessary to withdraw a plea after sentencing, the court generally considers the same factors reviewed for good cause to support a presentence motion to withdraw a plea, including whether the plea was fairly and understandingly made. A plea is understandingly made and constitutionally valid when it is both voluntary and consists of knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. Voluntariness implicitly requires statutorily defined competency.

State v. Gonzalez, ___ Kan.App.2d ___ (No. 119311, filed 05/31/19). In 2012, Gonzalez entered pleas to some misdemeanors and felonies, and acknowledged in writing that he might get deported based on the convictions. He was sentenced to probation initially, then violated and was revoked. He was then ordered deported in 2016. In 2017 he tried to set aside his plea after serving his sentence. The Court of Appeals said no dice. The district court may extend the one-year time limitation for a postsentence motion to withdraw a plea only if the defendant shows excusable neglect. K.S.A. 2018 Supp. 22-3210(e)(2). Excusable neglect under K.S.A. 2018 Supp. 22-3210(e)(2) requires something more than unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind. It requires some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his or her attorney. A defense attorney must advise a client whether a conviction likely will lead to deportation if that effect can be readily determined. When deportation is less clear, the attorney need only inform the noncitizen client that an uncertain risk exists of adverse immigration consequences. Padilla v. Kentucky, 559 U.S. 356, 367-69, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

State v. Woodring, ___ Kan. ___ (No. 117347, filed 03/01/19). Woodring, who was 17 years old, was the wheel man in a drive-by shooting that killed a young female. He was charged as an adult. Woodring entered into an agreement to plead no contest to felony murder in exchange for the State's agreement to dismiss other charges. Prior to sentencing, Woodring sought to withdraw his plea. He alleged that he was innocent of the crime to which he had pleaded guilty. As he explained at the hearing on his motion, "I feel like I shouldn't get a life sentence because I wasn't the one that pulled the trigger that killed that girl." He also contended that he was pressured into accepting the plea agreement by the State's insistence on a deadline for making a decision: "I feel like I was pushed into it by the DA, because she gave me a deadline and kept saying I need to take it by then." The Court denied his motion to set aside the plea and sentenced him to a hard 25 sentence. Woodring appealed. The Supreme Court affirmed. A mere change of mind does not justify disturbing a plea agreement without any evidence the plea was made unwillingly or without an understanding of the consequences. District courts should evaluate "whether '(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.'" State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Not all of the Edgar factors have to apply in a defendant's favor in every case, and the district court may duly consider other factors in its discretionary decision on the existence or nonexistence of good cause. State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010).State v. Parks, ___ Kan. ___ (No. 116172, filed 06/01/18). Parks killed his wife in 1978 and pled to her murder in 1997. He was convicted, in part, based on testimony in a New Mexico case for killing his second wife. Parks appealed the district court's denial of his pro se motion to set aside a "void judgment." He alleged : (1) the district court did not inform him at the plea hearing that the maximum penalty was life imprisonment; (2) his plea agreement was illegal on its face because the court lacked authority to enter the jail time credit; and (3) plea counsel was ineffective for allowing him to enter a plea based on an invalid agreement. At the urging of Parks' later-appointed counsel, the court treated the motion as one under K.S.A. 2017 Supp. 22-3210 to withdraw Parks' no contest plea accepted by the court 19 years earlier. The problem with that is under that statute, the defendant must make an affirmative showing of excusable neglect if the motion is brought more than one year after the appellate court's final order. Because Parks failed to allege the required excusable neglect, the court held it was untimely and denied it. Parks argued the court should have construed his motion as one under K.S.A. 60-1507 and allowed the untimely filing to prevent manifest injustice under subsection (f)(2) of that statute. The Supreme Court agreed with the State, however, that Parks' counsel's earlier urgings qualify as invited error. So the Supreme Court affirmed the denial of Parks' motion.

State v. Schaefer, ___ Kan. ___, ___ P.3d ___ (No.109915, filed 12/23/16). Schaefer pled nolo contendere to amended on-grid charges of rape and attempted rape. Prior to sentencing, Schaefer moved to withdraw his plea, arguing that the requisite good cause for withdrawal existed because his trial counsel had failed to advise him that his plea exposed him to possible involuntary civil commitment; his trial counsel and her law partner coerced him to accept the negotiated plea bargain; and his prescription drugs caused a faulty mental state that rendered ineffectual the colloquy with the judge at the plea hearing. The district court denied the motion to withdraw plea and the Supreme Court affirmed. Factors in deciding whether a defendant has shown good cause to withdraw a plea include: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. It found the record showed the Defendant understood the charges he faced; he understood the punishment he faced; he was in the right frame of mind to enter his pleas; and his pleas were voluntarily and knowingly made in open court. The district court did not abuse its discretion by finding Schaefer's pleas were voluntary, knowing, and intelligent.

State v. Ebaben, ___ Kan. ___, ___ P.3d ___ (No. 102,129, filed 7/20/12). The district court should have allowed Ebaben to withdraw his Alford plea to sexual battery. Instead of requiring a factual basis for the plea, the court merely summarized an amended complaint for the record and made no further effort to satisfy itself that there was a factual basis for the plea. Thus, the requirements of K.S.A. 22-3210(a)(4) were not met.

State v. Benavides, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104654, filed 09/23/11/). Back in 1994, Benavides pled guilty to attempted sale of marijuana. On January 28, 2010, he filed a motion to withdraw his plea because DHS was holding him for deportation based on his conviction and Benavides's contention his lawyer never told him that his plea could get him deported. The state argued the motion was untimely because it came more than a year after sentencing based on K.S.A. 2010 Supp. 22-3210(e). The district court agreed the motion was untimely and denied it. The Court of Appeals reversed, holding that a reasonable time period must be granted for individuals to bring preexisting claims after the enactment of the 1-year statute of limitations for filing motions to withdraw pleas after sentencing the statute took effect on April 16, 2009). Although the time limitation in K.S.A. 2010 Supp. 22-3210(e)(1) could

be considered a procedural amendment, it cannot be applied retroactively if doing so would violate an individual's substantive rights. Thus, the Court held that an motion to withdraw his plea had to be filed on or before April 15, 2010, and Benavides's motion was timely.

State v. Brown, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104081, filed 09/23/11). Brown pled to aggravated robbery and attempted aggravated battery, but had second thoughts prior to sentencing and sought to withdraw his plea. He cited conflicts with his appointed counsel which consisted of whenever he said something the attorney did not like, the attorney became angry, yelled at him, and told him he had no chance of winning at trial. Brown further testified that the attorney did not listen to his statements about his case and paid no attention to him. Finally, Brown testified that he entered the no contest pleas because he felt that if he proceeded to trial

with the attorney as his attorney, the attorney would not represent him to the best of his ability. The District Court denied the motion, finding no good cause. It cited the extensive plea colloquy the court went through while taking the plea. The Court of Appeals affirmed.

Prior Convictions

State v. Neal, ___ Kan. ___, ___ P.3d ___ (No. 100366, filed 08/05/11). Neal was convicted of second-degree murder and other crimes and challenged aggregation of three prior misdemeanors to a felony under the KSGA. His convictions, including his criminal history, were affirmed on appeal. Neal later filed a collateral attack, again challenging aggregation of three prior misdemeanors. The Supreme Court held that under the facts of this case, the trial court's summary dismissal of defendant's motion to correct illegal sentence under K.S.A. 22-3504 significantly reduced his ability to meet his burden of proving the invalidity of his prior convictions used to enhance his present sentence. Accordingly, the Court reversed and remanded the case. It tried to synthesize its prior rulings on whether actual imprisonment triggered the right to counsel, noting that whether his sentence includes jail time that is suspended or conditioned upon a term of probation also trigger the right to counsel. While the state has the initial burden, the defendant has the burden on collateral attacks.

State v. Loggins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 98,796, filed 10/17/08). While a certified journal entry is the best evidence of a prior conviction, it is not the only permissible form of evidence. Here, authenticated printouts of court computer screens that contained defendant's identifying information, the crime charged, the statute violated, the date of the offense, the plea, verdict and type and name of defense counsel were sufficient to prove prior convictions.

Probation Revocation

State v. Hurley, ___ Kan. ___, ___ P.3d ___ (No. 108735 filed 01/08/16). Upstanding citizen Hurley was on probation in three cases and violated his conditions. The district court conducted a probation revocation hearing at which Hurley stipulated to the allegations contained within the show cause narrative and stipulated that he had violated the terms of his probation. The district court asked Hurley whether he understood that if the court accepted Hurley's stipulation, then the court would "revoke you in each case and then we'll talk about disposition?" After Hurley answered in the affirmative, the judge declared: "Alright, the court will accept the waiver in all three cases and the stipulation, I'll revoke." After hearing from the parties, the court reinstated probation but with a 90-day sanction. Hurley asked to just go to prison instead. Prior to the end of the hearing, Hurley called his probation officer an asshole and told him fuck off. The judge held him in contempt, reopened the matter and ordered Hurley to serve his sentence. Hurley's appellate counsel convinced the court that once the district court had pronounced that it was reinstating probation, the pending probation revocation proceeding was concluded and that to impose another disposition required a new probation revocation hearing.

Probation Revocation

State v. Lyon, ___ Kan.App.2d ___ (No. 120993, filed 07/24/2020). The familiar rules on probation revocation are:


A district court's decision to revoke probation involves two steps: (1) a factual determination that the probationer has violated a condition of probation; and (2) a discretionary determination as to whether the proved violation warrants revocation of probation. State v. Skolaut, 286 Kan. 219, 227-29, 182 P.3d 1231 (2008). The State must establish a probation violation by a preponderance of the evidence. State v. Inkelaar, 38 an. App. 2d 312, 315, 164 P.3d 844 (2007). We review the district court's factual finding that a violation occurred for substantial competent evidence. Inkelaar, Kan. App. 2d at 315-16. Once a probation violation has been established, the decision to revoke probation rests within the district court's discretion. State v. Hurley, 303 Kan. 575, 580, 363 P.3d 1095 (2016). When determining whether a district court complied with due process requirements in revoking a defendant's probation, we apply an unlimited standard of review. 303 Kan. at 580.

            . . .

            While the decision to impose probation is an act of grace, once a defendant is granted probation, "he or she acquires a conditional liberty interest which is subject to substantive and procedural due process limits on its revocation." Hurley, 303 Kan. at 581. Since a protected interest is implicated, we must determine the nature and extent of the process that is due. Village Villa, 296 Kan. at 331.


Due process is flexible in that not all situations calling for procedural safeguards call for the same kind of procedure. See In re Care & Treatment of Ellison, 305 Kan. 519, 526, 385 P.3d 15 (2016). A due process violation exists only if the complaining party shows that he or she was denied a specific procedural protection to which he or she is entitled. See In re K.E., 294 Kan. 17, 22, 272 P.3d 28 (2012). The basic elements of procedural due process are notice and "the opportunity to be heard at a meaningful time and in a meaningful manner." Ellison, 305 Kan. at 526. "To satisfy due process, notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of an action and to afford the parties an opportunity to present any objections." Johnson v. Brooks Plumbing, LLC, 281 Kan. 1212, 1215, 135 P.3d 1203 (2006).


The revocation of a defendant's probation is not part of a criminal prosecution and, therefore, the full panoply of rights in a criminal case is not applicable to a probation revocation proceeding. State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), established minimum due process rights for parolees and later extended those rights to probationers in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). These due process rights include written notice of the claimed probation violations and disclosure of the evidence against the probationer. Hurley, 303 Kan. at 582. Our Supreme Court has held that the statute governing probation revocations—K.S.A. 22-3716—satisfies all constitutional requirements necessary in probation revocation proceedings. State v. Rasler, 216 Kan. 292, 296, 532 P.2d 1077 (1975).

State v. Coleman, ___ Kan. ___ (No. 118-673, 674, 675, filed 04/10/2020). Coleman received probation in three different cases and screwed up the probation sentences that he received as a dispositional departure. He later got a 45-day jail sanction as a result of motion to revoke. When Coleman screwed up again by failing to report, the State moved to revoke his probation in January 2017. The Kansas Legislature enacted K.S.A. 2017 Supp. 22-3716(c)(9)(B), effective July 1, 2017, which permitted a trial court to revoke a probationer's probation without first imposing graduated sanctions if the probation was granted as the result of a dispositional departure. See L. 2017, ch. 92 § 8. At a hearing on November 1, 2017 the district court revoked his probation and sentenced him to serve 68 months without an intermediate sanction. A majority of the Court of Appeals determined that the trial court could not revoke Coleman's probation without first imposing intermediate sanctions and remanded to the trial court. State v. Coleman, No. 118,673, 2018 WL 6580094 (Kan. App. 2018) (unpublished opinion). The Kansas Supreme Court affirmed the Court of Appeals and held that K.S.A. 2017 Supp. 22-3716(c)(9)(B) does not apply to probationers such as Coleman whose offenses were committed before that statute's effective date, and remanded for a new probation violation hearing with directions. Applying the familiar rule that generally, a statute operates prospectively unless there is clear language indicating the Legislature intended it to operate retrospectively, the Court held that subsection (c)(9)(B) applies only to probationers whose offenses or crimes of conviction occurred on or after July 1, 2017.

State v. Kendrick, ___ Kan.App.2d ___ (No. 120052, unpublished, filed 02/21/2020). In May 2016, Defendant was sentenced to 18 months probation for possession of marijuna with intent to distribute. Thereafter, he tested positive for THC, failed to report and was discharged from a drug and alcohol treatment program. The probation officer filed an affidavit describing probation violations without specifics. The state filed a motion to revoke, which the district court granted and ordered a 180-day sanction. Kendrick contends the district court violated his due process rights in two ways. First, he contends that the district court's admission of a case report written by his probation officer, who did not testify at the probation revocation hearing, violated his right to confront a witness. Second, he argues the district court violated his right to notice by finding he violated his terms and conditions of probation when he had not received written notice of these sanctions.The Court of Appeals agreed. The district court failed to apply the test our Supreme Court has established in State v. Yura, 250 Kan. 198, 207-08, 825 P.2d 523 (1992), to admit the case report, and Kendrick did not receive any other written notice of violations. The State presented no evidence of the two possible sanctionable violations, and Kendrick did not admit to them.

State v. Clapp, ___ Kan. ___ (No. 112842, filed 09/7/18). Clapp was convicted of 13 various charges and sentenced to probation. Clapp promptly violated probation by ingesting drugs, failing to report, and failing to do many other requirements. He was sanctioned by being ordered to serve 180 days. Then, he violated again and the state requested he be ordered to serve his 118 month sentence. The court revoked Clapp's probation and imposed the underlying sentence. Clapp appealed to the Court of Appeals raising two issues. First, he argued the district court's decision to revoke his probation constituted an illegal sentence. Second, he argued in the alternative that the district court erred in revoking his probation without making the requisite statutory findings under K.S.A. 2014 Supp. 22-3716(c)(9) to bypass intermediate sanctions. The Supreme Court agreed with Clapp. 22-3716 (c)(1)(B) provides the first step in the graduated intermediate sanctions scheme. The court can order the violator to serve two-day or three-day stints in jail, with an outside limit of 18 days of total confinement in jail. This jail sanction might be imposed by court services or community correctional services under subsection (b)(4), in addition to being available for the district court to impose. If a probation violator has already had at least one jail sanction under (b)(4) or (c)(1)(B), the court can impose the next step: sending the violator to prison for 120 days, subject to a discretionary reduction of up to 60 days by the secretary of corrections. K.S.A. 2014 Supp. 22-3716(c)(1)(C). The court can use this sanction step only once during the probation term. "We now have a new probation revocation scheme in this State, and we hold that the district court failed to comply with that new law."

State v. Dooley, ___ Kan. ___ (No. 111554, filed 08/10/18). Dooley pled to failure to register as an offender. The district court sentenced him to an underlying 120-month prison term but granted a dispositional departure to 36 months' probation with an assignment to the community corrections intensive supervision program. Dooley failed to comply and served 2 and 5 day sanctions. He was revoked and reinstated on other violations and eventually violated virtually all conditions of his conditional release. The state filed a second motion to revoke which the district court granted after finding that Dooley absconded. The district court failed to indicate why it was skipping over the intermediate sanctions required by K.S.A. 2013 Supp. 22-3716. Due to its failure, the Supreme Court remanded to the district court for further proceedings.

Prosecutorial Misconduct

State v. Martinez, ___ Kan. ___ (No. 119739, filed 07/24/2020). During closing argument in a murder trial, the prosecutor stated, "The defense has speculated about other peoples [sic] motives, but the State has actually presented evidence." The defendant alleged the prosecutor impermissibly (1) shifted the burden of proof from the State to the defense and (2) infringed on the protection against compulsory self incrimination found in the Fifth Amendment to the United States Constitution and in § 10 of the Kansas Constitution Bill of Rights. The Supreme Court disagreed, finding the remark was within the wide latitude allowed in closing arguments.

State v. Chandler, ___ Kan. ___ (No. 108625, filed 04/06/18). The court reversed Dana L. Chandler's premediated first-degree murder convictions of Mike Sisco and Karen Harkness due to Chad Tayler and Jacquie Spradling's prosecutorial misconduct. The main misconduct requiring reversal was Spradling's false statement that Mike got a protection from abuse order against Chandler from the Douglas County District Court. On the sufficiency of the evidence, the court described the state's evidence as: (1) her inconsistent statements for her whereabouts on July 6 and 7, 2002; (2) her gas purchases on those days; (3) her obsessive behavior toward the victims; and (4) the two post-arrest jailhouse phone calls. It said that evidence was sufficient when viewed in the light most favorable to the State, such that a rational factfinder could have found the defendant guilty beyond a reasonable doubt of the crimes charged.

State v. McBride, ___ Kan. ___ (No. 112277, filed 12/01/17). Todd Hiatt committed reversible prosecutorial error when he said the victim of Osibisa McBride's rape (C.C.) deserved the same kind of presumption as the defendant - e.g., a presumption that she is telling the truth. He also erred by suggesting the defendant has to produce proof the victim was not telling the truth.

State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (No. 113105, filed 09/09/16). The "particularized harmlessness inquiry" commanded by State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), is overruled. Whenever a claim is asserted that any act of a prosecutor has denied a criminal defendant his or her due process rights to a fair trial in a criminal appeal, we will refer to the claim and resulting judicial inquiry as a claim of "prosecutorial error." Appellate courts will continue to employ a two-step process to evaluate claims of prosecutorial error. These two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial.

State v. Tahah, ___ Kan. ___, ___ P.3d ___ (No. 109857, filed 10/02/15). Tahah, a former Dodge City police officer, shot his ex-girlfriend in the head. In closing, the prosecutor said the Defendant cannot claim, on one hand, he was not there and did not pull the trigger and "at that same time claim that if he was there, it was unintentional and reckless." The Court held this argument was a misstatement of the law, but was harmless error. A defendant has the right to assert factually inconsistent defenses at trial. A prosecutor's misstatement of the law is subject to a harmless error analysis in which the court considers whether: (1) the error was gross and flagrant, (2) the error showed ill will on the prosecutor's part, and (3) the evidence was so overwhelming that the error would have had little weight in the jurors' minds.

State v. Ortega, ___ Kan. ___, ___ P.3d ___ (No. 106210, filed 10/03/14). Two trial errors, both relating to her defense of ignorance or mistake, were sufficiently prejudicial to warrant the reversal of her conviction for attempted aggravated interference with parental custody. This prejudice did not taint Ortega's conviction for disorderly conduct, however. Ortega basically abandonded her children for over a month while she was in Colorado and they were taken into state custody. Ortega showed up at school to pick up her kids, and was told she could not have them. Ortega threw a fit, and Ortega was yelling: "You white bitches can't keep me from my child"; "You white bitches have picked on the wrong . . . Mexican, and you going to regret this"; "[T]his f***ing school is nothing but a bunch of prejudiced people, including you Mother F***er"; "Kansas is black and white, and I'm Mexican, . . . F***ing Kansas is stupid"; and "Kansas doesn't know who they're messing with, . . . When Aztlan rises, we're going to take our lands back." On the attempted aggravated interference charge, the prosecutor told jurors it didn't matter if Ortega had notice of the SRS proceedings - she could not rely on mistake of fact. The comments misstated the law relating to a defense that is defined by statute and deprived the Defendant of a fair trial.

State v. Brown, ___ Kan. ___, ___ P.3d ___ (No. 106111, filed 08/15/14). "We hold the prosecutor's statement that Brown had the weekend to "decide" how to testify in response to the evidence against her was misconduct. The clear thrust to such a statement was that Brown must have lied because an honest person does not have to "decide" what the truth is. And in this case the prosecutor seasoned this suggestion by referring to Brown's testimony as a "tale" and a "story." Given our caselaw, a prosecutor's time during closing arguments is better spent discussing the evidentiary strengths of the case at hand, rather than devising different ways to euphemistically accuse a criminal defendant of lying on the witness stand."

State v. Akins, ___ Kan. ___, ___ P.3d ___ (No. 105809, filed 01/10/14). In a sexual abuse case, the prosecutor committed reversible error by giving unsworn testimony to three facts not in evidence: (1) that the Finding Words protocol is the "gold standard"; (2) that a court of law called the Finding Words protocol the gold standard; and (3) that the prosecutor knows more about the Finding Words protocol than the expert witness she was cross-examining. Additionally, the prosecutor improperly injected the concept of "grooming" into the state's case without any evidence, therefore, her comments necessarily went beyond the latitude allowed in discussing the evidence. And, for the hat trick, the prosecutor also improperly commented on the credibility of witnesses.

State v. Stimec, ___ Kan. ___, ___ P.3d ___ (No. 103229, filed 04/19/13). In an aggravated indecent liberties with a child case, the prosecutor committed misconduct during rebuttal closing argument by encouraging the jury to return to the jury room and take a poll to determine whether any of them had engaged in conduct similar to the allegations against Stimec (stroking the victim's penis with lotion). These statements were reversible because they: (1) appealed to the passions and prejudices of the jury; (2) diverted the jury's attention from the facts of the case, explicitly inviting the jury to consider facts outside the record; (3) implicitly commented on Stimec's credibility; (4) misstated the evidence by suggesting Stimec "stroked" his son's penis when in fact, the victim's statements and testimony did not utilize this phrase; and (5) potentially exposed individual jurors to ridicule by their colleagues, decreasing the likelihood any juror would argue for acquittal.

State v. Crawford, ___ Kan.App.2d ___, ___ P.3d ____ (No. 103881 filed 09/09/11). Analogizing a jigsaw puzzle with pieces missing to reasonable doubt was error. Our Supreme Court, while not addressing the jigsaw puzzle analogy specifically, has stated that "[c]omments by a prosecutor which suggest to the jury that it may convict a defendant on anything less than proof beyond a reasonable doubt constitutes prosecutorial misconduct." State v. Brinklow, 288 Kan. 39, Syl. ¶ 5, 200 P.3d 1225 (2009). Here, the prosecutor stated that "even though there's some pieces missing, you're able to say that looks like a lighthouse and an ocean," which implied to the jury that it could find Crawford guilty even if some evidence was missing if it "looked like" he committed the crimes. Therefore, the court concluded the comments were beyond the wide latitude afforded prosecutors and constituted misconduct, but were no so prejudicial as to require a new trial. " But we hasten to add that argument designed to define reasonable doubt for jurors with unusual or seemingly clever analogies heads down a path fraught with peril. References to jigsaw puzzles and missing pieces venture into particularly dangerous territory, as the case authority from other jurisdictions suggests. Such arguments often impermissibly suggest a mathematical formula for reasonable doubt or otherwise tend to dilute the standard or confuse jurors in ways that could result in reversible error in many circumstances. Counsel in criminal cases would do well to avoid comments mixing reasonable doubt and jigsaw puzzles in speaking with the jury."

State v. Nye, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104046, filed 07/29/11). The defendant's refusal to take the breath test does not justify a prosecutor's comment that the defendant "knew back then" that he was guilty and "he knows it now." Such comments were outside the wide latitude allowed to prosecutors and placed a burden on the defendant to take the breath test to prove his innocence.

State v. Turner, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102478, filed 04/22/11). Rodney Turner allegedly performed $370,000 worth of legal work for the Kansas City Board of Public Utilities. A grand jury was empaneled and heard testimony indicating that Turner did not actually perform certain work, and eventually returned an indictment of Turner for 2 counts of felony theft and 55 felony counts of presenting a false claim. Turner was subpoenaed and indicated in writing that he planned to invoke his Fifth Amendment rights. The prosecutor called him anyway. Turner invoked and refused to answer over 120 questions. Turner filed a motion to dismiss the indictment, which the district court granted. The state appealed. The Court of Appeals reversed, holding that grand jury witnesses are not entitled to blanket immunity if they invoke their Fifth Amendment rights. Drawing a parallel to inquisitions, the court held:

Based on the decision in [In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 932 P.2d 1023 (1997)], as well as the language of K.S.A. 22-3008 and 22-3009, we conclude the State did not violate Turner's Fifth Amendment rights by requiring him to invoke those rights in front of the grand jury on a question-by-question basis. Accordingly, the district court erred by finding it was improper for the prosecutor to ask Turner questions in front of the grand jury after knowing that Turner would invoke his Fifth Amendment rights. Likewise, the district court erred by granting Turner's motion to dismiss the indictment based in part on this reason.

            The Court also found objectionable the prosecutor's comments on Turner's refusal to testify. While noting that Doyle does not directly apply to grand jury proceedings, the Court said, "At the time Delaney made this comment, the district court already had instructed the grand jury to not consider the fact that Turner refused to testify in arriving at a decision regarding the indictment. In light of this instruction, Delaney's comment on Turner invoking his right to remain silent was clearly improper." But it reversed the district court, noting that grand jury proceedings are investigative, not criminal, and any inadmissible evidence presented to the grand jury can be excluded at the criminal trial. It found probable cause for the charges and reversed and remanded for further proceedings.

State v. Pruitt, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,039, filed 06/18/09). Pruitt was denied a fair trial by the prosecutor violating an order in limine on how a police officer witness knew Pruitt (based on a prior incident), a Doyle violation, and by the giving of a misleading Allen instruction (see State v. Salts) over the defendant's objection. Additionally, cumulative error infected the trial.

Douglas v. Workman, ___ F.3d ___ (10th Cir. No. 01-6094 filed 03/26/09). In a federal habeas petition alleging prosecutorial misconduct in a capital matter, the denial of the petition is reversed, where there was a reasonable probability that the outcome of Petitioner's trial would have been different had the prosecution not suppressed evidence of a deal made with a prosecution witness. Smith, a key prosecution witness, recanted his testimony identifying Douglas as one of the shooters in a drive-by shooting while Douglas's case was on appeal, and alleged the prosecutor had suborned perjury. Douglas also alleged the prosecutor covered up favorable treatment of Smith in exchange for Smith's testimony. There was sufficient evidence that the prosecutor failed to disclose exculpatory evidence and a deal with Smith to grant the habeas petition. See Napue v. Illinois, 360 U.S. 264 (1959); Brady v. Maryland, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150, 153 (1972).

In Re Campbell, ___ Kan. ___, ___ P.3d ___ (No. 101,116, filed 01/16/09). Prosecutor showed pictures of underage drinkers and a couple involved in a sex act to the parents of the children to "wake them up," as to what was occurring at teenager drinking parties. Although the disciplinary administrator and respondent agreed on public censure, the hearing panel recommended a 90-day suspension. The Supreme Court went even farther and imposed a six-month suspension.

State v. Blomquist, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95995, filed 02/29/2008). Defendant was convicted of 78 counts of inappropriate sex with a retarded 12-year old boy. The prosecution's theory relied, in large part, on proving the defendant was homosexual, and it introduced evidence that the defendant never dated women. The Court of Appeals held the prosecutor's actions were gross and flagrant misconduct and given the prejudicial character of homosexuality, was an appeal to passion, prejudice and fear. It held these actions deprived the defendant of a fair trial and reversed the convictions.

Hamilton v. Mullin, ___ F.3d ___ (10th Cir. No. 04-5067, filed 01/24/2006). Although prosecutor crossed the line in closing argument, the error was harmless beyond a reasonable doubt and did not warrant habeas relief. Where a prosecutors remarks concern matters that could have been explained only by the accused, they give rise to an innuendo that the matters were not explained because the accused did not testify and thus amount to indirect comment on the defendant's failure to testify. Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001).

State v. Henderson, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89545, filed 8/27/2004). Quoted text follows:

Closing Argument

            Henderson criticizes statements made by the prosecutor during closing argument. Though Henderson did not object at the time, the trial court has the duty to protect his right to a fair trial by preventing prosecutorial misconduct regardless of whether a timely objection was made. State v. Holmes, 272 Kan. 491, 498, 33 P.3d 856 (2001). Consequently, our standard of review is the same whether or not an objection was made at trial. Henderson has the burden of establishing that the claimed prosecutorial misconduct denied him a fair trial under the Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003).

            We must first determine whether the prosecutor's comments were outside the wide latitude that a prosecutor is allowed when discussing the evidence. If they exceed these bounds, we then must determine whether they were so gross and flagrant as to prejudice the jury against Henderson and deny him a fair trial. 275 Kan. at 121. If we reach this second step we must determine whether the prosecutor's comments show ill will, whether the trial court sanctioned the comment, and whether the evidence against Henderson was so overwhelming that the prosecutor's misconduct had little or no likelihood to have changed the result of the trial. State v. Scott, 271 Kan. 103, 115, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).

            The prosecutor argued in summation:

"And there is something about this case that's just could kind of tough. And part of it is the nature of kids. Nature gives babies, most babies protection. Deer, a baby fawn is born without any scent and has color spots on its coat. That's how it gets protection. Birds, they hatch out eggs up in trees where they can't be reached. They say that a gorilla baby when it's born has the strength of an adult male. Horses jump right up and they run away. Most animals have a defensive mechanism immediately. Baby rattlesnakes have just as much poison as adult rattlesnakes. Except for babies that are born to humans. They're born without any hair, any type of warmth. They're stinky; can't feed themselves. Can't walk. If you leave them alone, they'll die.

". . . Those babies rely upon their parents to protect them for life. That's one of the - - we got many that - - that's one of the basic rules of life. That's what is tough about this case. It is because you have got a father who betrayed that trust. And the fact that he might be low-functioning or illiterate doesn't excuse that.

"The evidence in the case is overwhelming the defendant committed those crimes. The facts establish it. The law establishes it, and we ask that you find him guilty. Thank you."

            In State v. Rodriguez, 269 Kan. 633, 643, 8 P.3d 712 (2000), the court stated:

"During closing argument, an attorney is given wide latitude in the language and manner of presenting argument and may indulge in impassioned bursts of oratory and may use picturesque speech as long as he or she does not refer to facts not disclosed by the evidence. [Citation omitted.]"

            Henderson claims the prosecutor improperly referred to facts outside the evidence when he discussed the defense mechanisms of baby animals and the trust relationship between human babies and their parents. We are not surprised that evidence regarding baby animals or trust relationships was never presented at trial.

            The charges against Henderson were tried to a jury of 12. One of the many reasons we hold inviolate the right to trial by jury is our understanding that the knowledge, experience, and judgment of one person is most often inferior to that of 12 members of the community. In seeking out members of the community for jury service, the courts do not limit the search to inhabitants of monasteries or nunneries or others who live a cloistered life. An important attribute of a jury is the collective common knowledge and wisdom it possesses from the varied experiences of its members during their many years on this earth. Matters within the common knowledge of mankind are a proper subject for comment during the summation. See State v. Jones, 197 Ariz. 290, 306, 4 P.3d 345 (2000); People v. Strozzi, 712 P.2d 1100, 1105 (Colo. App. 1985); Hall v. State, 259 Ga. 412, 414, 383 S.E.2d 128 (1989); McLaughlin v. State, 780 P.2d 964, 968 (Wyo. 1989). The prosecutor, through these references in summation, sought to tap into that common knowledge and experience which is one of the core values of our jury system.

            Granted, the prosecutor's statement about the strength of a baby gorilla or the venom of a baby rattlesnake may test the limits of our common knowledge. However, our condemnation of a prosecutor's arguing facts outside the record is based on the improper suggestion to the jury that there are facts directly bearing on the case that the jury should know but for some reason were not brought out in the evidence. That is not the case with references to baby gorillas and rattlesnakes. For rhetorical purposes, the prosecutor could just as well referred to the self-protective horn on the head of a baby unicorn.

            Oratory is the essence of the summation. It brings to the courtroom the exercise of eloquent and effective public speaking. The constitutional insistence upon a fair trial for the accused does not demand that we ban oratory from the courtroom. To strip trial lawyers of analogies, similes, allusions (be they historic, poetic, literary, or scientific), and other rhetorical devices would reduce them to little more than green-eye-shaded bookkeepers, recounting for others the facts and figures they have accumulated during the course of the trial. We are taught in law school that a summation is more than the mere recital of facts adduced at trial. The trial lawyer's role in summation is to bring order to the facts presented at trial, place them in a meaningful context, and out of this collection of bits and pieces construct the whole of a case. Melvin Belli observed:

"If the tree, with its main branches, is painted, the leaves will be supplied by the brushes of the jurors, but if only the leaves are illustrated, they may fall into a confused mass where there is no support from the main branches." 5 Belli, Modern Trials § 65.4, p. 75 (1982).

            We sometimes think of courtroom oratory as a quaint vestige of the past. It seems to have enjoyed a more honored place in past pronouncements:

"[No lawyer] is required to forego all the embellishments of oratory, or to leave uncultivated the field of fancy. It is his time-honored privilege to 'drown the stage in tears, make mad the guilty and appal the free, confound the ignorant, and amaze, indeed, the very faculties of eyes and ears.'" State of Iowa v. Burns, 119 Iowa 663, 94 N.W. 238 (1903).

            Further, our modern courtroom sensibilities make us wince at remarks such as expressed by counsel during his summation in Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341 (1897), a breach of marriage contract and seduction case, in which he referred to defendant as a "fiend" and a "hell-hound." (The Tennessee Supreme court noted that "other language could have been used, no doubt, equally as descriptive, and not so vituperative." 98 Tenn. at 350.) And we may look askance at the approval of counsel's tearful plea to the jury. ("Tears have always been considered legitimate arguments before a jury, and . . . we know of no rule or jurisdiction in the court below to check them. It would appear to be one of the natural rights of counsel, which no Court or constitution could take away." 98 Tenn. at 351.) Nevertheless, the ancient role of rhetoric in final argument survives. We note an early expression of its importance in VanDyke v. Martin, et al., 55 Ga. 466, 470 (1875):

"[The summation] is not a mere ornamental fringe, hung upon the border of a trial. . . . The attorneys in the cause are not mere carriers to bring in materials for constructing the edifice; they have a right, as representing the parties, to suggest where every important stone should be laid, and to assign reasons, drawn from legitimate sources, in support of their suggestions."

            Over the decades, courts have become increasingly sensitive to the impact of improper argument upon an accused's right to a fair trial ― thus, our concern with unwarranted wanderings from the record. Nevertheless, we have not left the trial lawyer so emaciated that he or she may no longer refer to the blueness of the sky or the breadth of the firmament without first calling a meteorologist or a cosmologist as an expert witness.

            Modern courts have allowed references in summation from sources as disparate as the Bible (Mayberry v. State, 603 P.2d 1150 [Okla. Crim. 1979]; People v. Wash, 6 Cal. 4th 215, 24 Cal. Rptr. 2d 421, 861 P.2d 1107 [1993]) and the Ann Landers advice column (Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64 [8th Cir. 1988]). In the case before us, we find that the prosecutor's comments did not exceeded these time-honored rhetorical bounds now tempered with attentive concern for Henderson's right to a fair trial.

United States v. Oliver, ___ F3d ___ (10th Cir. No 00-4191, filed 11/14/ 2001). Prosecutor's single question of whether defendant invoked his Miranda rights after arrest alone, and unanswered, is insufficient to infringe on defendant's right to remain silent.

State v. Scott, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82829, filed 1/5/2001). Questions asking why a defendant waited until trial to divulge their alibi constitute a Doyle violation and are improper. Prosecutors cannot elicit evidence at trial of a defendant's post-Miranda silence. See Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 79 L.Ed.2d 91 (1976); State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998); State v. Heath, 222 Kan. 50, 53, 563 P.2d 418 (1977); State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976).

State v. Pham, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82596, filed 9/1/2000). Asian gang banger pointed gun at someone's head. Was arrested a couple weeks later and a gun was found in car. Prosecutor couldn't show it was gun used in aggravated assault, and it denied the defendant a fair trial when she tried to introduce it in evidence. "This prosecutor appears to have forgotten that she holds a position unique in the bar. Although she is required to be a zealous advocate on behalf the government, she must not pursue conviction at all costs. Her role is to see that justice is done. "[T]he prosecutor should always bear in mind that he or she is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he or she should preserve." See State v. Lockhart, 24 Kan. App. 2d 488, 493, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (citing State v. Wilson, 188 Kan. 67, 73, 360 P.2d 1092 [1961]).

We are convinced that the prosecutor's use of the gun at Pham's trial represented prejudicial misconduct geared to achieve her desired ends with little attention to the fairness of the means. We therefore find that the district court abused its discretion in refusing to grant a new trial to Pham on this issue."

            Prosecutor also committed misconduct during closing:

"In this case, we find the prosecutor's statements that defense counsel Loeffler did not "want the truth" and that he told the jury under oath that he did not "care about the truth" misstated the evidence and, in essence, called him a liar. This impression was furthered by her accompanying remark: "Boy, if you're going to be looking at the credibility of the witnesses, you might also start with some of these lawyers." See Pabst, 268 Kan. at 505-07 (prosecutor's assertion that defendant lied improper); Lockhart, 24 Kan. App. 2d at 491-93 (prosecutor's comments referring to defendant and defense counsel as liars "serious breaches of the standard of fair comment permitted to lawyers when making closing arguments"; "[t]rials cannot be allowed to degenerate into name-calling contests"); see also State v. Gray, 25 Kan. App. 2d 83, 84-88, 958 P.2d 37 (1998) (prosecutor's comments during cross-examination and closing argument manifesting ill will and calling attention to matters outside the evidence merit reversal).

An evaluation of the comments made by the prosecutor is complicated because of defense counsel's dual role as advocate and witness. However, we believe these comments reflect an ill will toward the defendant and opposing counsel that is destructive to the professionalism on which the bar prides itself. They also constituted gross and flagrant misconduct that denied the defendant a fair trial. In the words of the Lockhart panel: "Juries must be given an opportunity to exercise reason and sound judgment in deciding the facts of a case, free from passion and prejudice." 24 Kan. App. 2d at 492. Especially when the district judge fails to rein in bad behavior by the prosecutor, juries are encouraged to throw over rational analysis for emotion, and the defendant's right to due process of law is violated. We believe the prosecutor crossed the line here.

Our conclusion in this regard is reinforced by additional improper comments made by the prosecutor during closing argument. At one point, despite an absence of any evidence of police investigation results to support her, the prosecutor suggested to the jury that she had many additional witnesses who would tie Pham to the crime; she told the jury she simply chose not to call them to avoid wasting time. She also expressed her opinion that a witness other than Loeffler was "not credible." Although these comments passed without objection, we note them as further indicators of ill will and the triumph of zeal over responsibility throughout the trial. See Pabst, 268 Kan. at 510 (statements regarding witness credibility demonstrate prosecutor ignored obligation to avoid personal insinuations)."

Portudono v. Agard, ___ U.S. ___, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000) (reversing 117 F.3d 696). No reversible error when prosecutor challenged respondent's credibility during summation, calling the jury's attention to the fact that respondent had the opportunity to hear all other witnesses testify and to tailor his own testimony accordingly. Prosecutor's comments did not violate respondent's Fifth and Sixth Amendment rights. It is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he has heard the testimony of those who preceded him. Cf. Griffin v. California, 380 U.S. 609, which suggested that a defendant's silence is "evidence of guilt," id., at 615. The prosecutor's comments in this case concerned respondent's credibility as a witness. They were therefore in accord with the Court's longstanding rule that when a defendant takes the stand, his credibility may be assailed like that of any other witness--a rule that serves the trial's truth-seeking function, Perry v. Leeke, 488 U.S. 272, 282.

State v. Smith, ___ Kan. ___, ___ P.2d ___ (No. 78,902 filed 12/10/99). Prosecutor can comment on a defendant's failure to make statements to police, but cannot comment on defendant's refusal to testify. The Fifth Amendment to the United States Constitution forbids comment by the prosecution on the accused's silence or instructions from the court that such silence is evidence of guilt. State v. Davis, 255 Kan. 357, 361, 874 P.2d 1156 (1994). The prohibition is codified in Kansas in K.S.A. 60-439. See also State v. Ninci, 262 Kan. 21, 47-48, 936 P.2d 1364 (1997).

State v. Smith, ___ Kan.App.2d ___, 11 P.3d 520 (2000); State v. Lockhart, 24 Kan.App.2d 488, 947 P.2d 461 (1997); State v. Hutcherson, 25 Kan.App.2d 501, 968 P.2d 1109 (1998) and State v. Hill, (Kan.App. No. 78,788 unpublished decision filed 3/12/99). Prosecutor cannot call defendant, defense attorneys and/or defense witnesses “liars” during closing argument.

State v. Edwards, ___ Kan. ___, 955 P.2d 1276 (1998). Prosecutor’s eliciting of evidence on defendant’s post-Miranda silence violates Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, witnesses’ comment, in passing, that suspect invoked right to attorney, followed by an objection and offer to admonish, and which State does not further comment on, is harmless error where defendant then agreed to speak with police.

State v. Gray, ___ Kan. App. 2d ___, 958 P.2d 37 (1998). Remark during closing argument that defendant’s needle tracks were much more pronounced on day of arrest was reversible error despite judge’s admonishment.

United States v. Singleton, ___ F.3d __ (No. 97-3178 1/8/99)(en banc). Federal prosecutors can offer witnesses promises of leniency in exchange for witness's truthful testimony. Doing so does not violate a federal statute prohibiting "anyone" from offering anything of value in exchange for their testimony.

Public Nuisance

Kashbro Inc. v. Miami, Fla., ___ So.2d ___ (No. SC94058, filed 7/12/01). City may be liable for compensation for a taking when it shuts down property as a public nuisance if the nuisance activity could be alleviated with less infringement on lawful conduct. Here Miami shut down a motel for drug and prostitution activity, and an apartment building for cocain sales. The drugs and prostitution were so inextricably intertwined with the motel operation that no compensation was due. On the other hand, padlocking an apartment building for a year based on two sales of cocaine at the complex was not specifically tailored to abate the drug nuisance, so compensation is due.

Questions Reserved

State v. Tremble, ___ Kan. ___, ___ P.3d ___ (No. 91672, filed 4/22/2005). Where questions reserved are highly fact-specific and the opinion will not provide helpful precedent, the court will not entertain the appeal. In this case, defendant fired multiple gunshots into the pavement, injuring several people. The state charged him with eleven counts of aggravated battery, a level 8 felony. Based on the victims statements at preliminary hearing, the state would decide whether to file as level five aggravated battery. At the beginning of prelim, defendant waived and wanted to plea as charged. The state objected, but did not dismiss, and the judge accepted the plea. The state appealed. The Supreme Court declined jurisidiction.

Selective or Discriminatory Prosecution

State v. Gant, ___ Kan. ___, ___ P.3d ___ (No. 98,026, filed 01/30/09). In order to establish a defense, a defendant must show that others who are similarly situated are generally not prosecuted for conduct similar to the conduct for which the defendant is being prosecuted and that the defendant has been intentionally and purposefully singled out for prosecution on the basis of arbitrary or invidious criteria.

Res Gestae

State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Res gestae is no longer an independent basis for admission of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules.


State v. Tucker, ___ Kan. ___ (No. 119242, filed 06/12/2020). A district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without the possibility of parole to pay restitution even while recognizing the restitution would not be paid. The defendant met the burden of establishing that the restitution plan was unworkable.

State v. Johnson, ___ Kan. ___ (No. 117788, filed 05/31/19). A sentencing judge who fails to explicitly bifurcate or continue a sentencing proceeding to set restitution later loses jurisdiction to do so. See State v. Charles, 298 Kan. 993, 318 P.3d 997 (2014); State v. Hall, 298 Kan. 978, 982-83, 319 P.3d 506 (2014). A sentencing court loses jurisdiction to modify a sentence except to correct arithmetic or clerical errors after a legal sentence has been pronounced from the bench. Hall, 298 Kan. at 983; see K.S.A. 2018 Supp. 21-6820(i). Restitution is part of a sentence. 298 Kan. at 983. Subject matter jurisdiction persists if a district court bifurcates or continues a sentencing hearing to address restitution at a later date. 298 Kan. at 986-87. We made clear in Hall and Charles that future sentencing judges would be expected to make "an explicit and specific order of continuance for the purpose of determining the amount of restitution or whatever other aspect of sentencing remains incomplete." Hall, 298 Kan. at 987; see also Charles, 298 Kan. 993, 1002 ("a district judge should expressly enter an order of continuance"). The failure to do so would deprive the court of subject matter jurisdiction to impose restitution after a sentencing hearing concluded. See Charles, 298 Kan. at 1002-03; see also State v. Frierson, 298 Kan. 1005, 1020-21, 319 P.3d 515 (2014).

State v. Smith, ___ Kan.App.2d ___ (No. 119356, filed 05/24/19). Smith pled to possession of stolen property and was ordered to pay restitution. For a stolen motorcycle, he was ordered to pay the amount necessary to repair the damaged motorcycle. Smith was ordered to pay the entire costs of a stolen scooter that was sold at police auction. Smith appealed. The Court of Appeals affirmed, repeating the familiar rules: Restitution "shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable." K.S.A. 2018 Supp. 21-6604(b)(1). Any restitution ordered in a criminal case must be based on the damage or loss caused by the crime. Restitution depends upon the establishment of a causal link between the defendant's crime and the victim's damages. The damage or loss caused by the defendant's crime shall include the cost of repair or replacement of the property that was damaged.

State v. Dwyer, ___ Kan.App.2d ___ (No. 118940, filed 03/15/19). Dwyer was convicted of three counts of theft in 2003 and was ordered to pay $8,450 in restitution as part of his sentence. In 2017, Dwyer filed a motion with the district court to release his judgment because it had remained dormant for the statutory period of seven years. The district court held Dwyer's judgment was already void prior to the effective date of a 2015 amendment to K.S.A. 2017 Supp. 60-2403 making restitution orders enforceable forever, and released his judgment. The Court of Appeals reversed. The plain and unambiguous language of K.S.A. 2017 Supp. 60-2403 states that all restitution judgments not void as of July 1, 2015, continue to be enforceable forever.

State v. Futrell, ___ Kan. ___ (No. 115160, filed 06/08/17). Futrell pleaded no contest to a residential burglary that took place February 20. The district court ordered him to pay restitution for damages caused by the burglary and for money stolen during that burglary. The court also ordered him to pay for damages he allegedly caused in a separate burglary and theft on January 31 and for damage to a cell phone in a separate case. The Court of Appeals affirmed the order except for the portion requiring Futrell to pay for damages in the January 31 crimes. The Supreme Court affirmed the decision in part but vacated the order that Futrell pay for the February 20 theft damages and remanded the case for a new restitution hearing. It instructed the district court to reconsider its calculation of restitution under the standard adopted in State v. Arnett, __Kan.__, 413 P.3d 787 (Appeal No. 112572, filed March 23, 2018), that provides a defendant may only be ordered to pay restitution for damages that were proximately caused by the crime of conviction

State v. Meeks, ___ Kan. ___ (No. 113593, filed 04/13/18). Meeks pleaded guilty to felony theft over $1,000 but less than $24,999 for the theft of a vehicle. The district court sentenced him to 11 months in prison and ordered him to pay $14,356.21 in restitution. Meeks challenged the restitution order as unworkable under K.S.A. 21-6605(b)(1). The court held that a plan of restitution is unworkable when the defendant has shown an inability to pay and cautioned that unworkability must be determined on a case-by-case basis. The court held that Meeks had not shown the plan of restitution was unworkable because he had not shown he would be unable to pay restitution after his release from prison.

State v. Arnett, ___ Kan. ___ (No. 112572, filed 03/23/18). Arnett loaned her mother's car to two thugs who used it to commit burglaries. They paid her $200 for its use. Arnett pleaded guilty to conspiracy to commit burglary, and was ordered to pay about $33,250 in restitution. She alleged her restitution should have been limited to the $200 she was paid. The Court of Appeals held that the district court erred in ordering Arnett to pay restitution because her crime of conspiracy to commit burglary did not cause the damages. The Supreme Court reversed, holding the panel misinterpreted the restitution statute, K.S.A. 2014 Supp. 21-6607(c), when it read into its meaning a requirement that the crime of conviction have a direct causal link to any damages. An indirect link is good enough. However, the causal link between a defendant's crime and the restitution damages for which the defendant is held liable must satisfy the traditional elements of proximate cause: cause-in-fact and legal causation.

State v. Jamerson, ___ Kan.App.2d ___, ___ P.3d ___ (No. 116413, 06/16/17). Once a defendant has been sentenced in accordance with the relevant criminal statutes, enforcement of the restitution portion of the defendant's sentence is governed by the Kansas Code of Civil Procedure and is treated the same as any other money judgment obtained in a civil suit. A judgment creditor may seek to enforce his or her award through garnishment proceedings as soon as 14 days after a judgment is entered. K.S.A. 2016 Supp. 60-731(a). This is true regardless of whether an appeal has been filed challenging the underlying award. However, when a district court does not make it clear that restitution is payable immediately, restitution does not become due until the prisoner against whom the judgment is entered is released from prison. State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364 (2014). see also State v. Holt, 305 Kan. 839, 841, 390 P.3d 1 (2017) (reaffirming Alderson).

State v. Charles, ___ Kan. ___, ___ P.3d ___ (No. 102981, filed 02/28/14). Restitution is a part of a defendant's sentence, and sentencing is not final until any applicable restitution amount has been set, but a judge can continue the sentencing for a later restitution hearing, if necessary. If the judge fails to reserve jurisdiction and enters a restitution order somewhere other than open court with defendant present without a waiver, the order is void.

State v. Hall, ___ Kan. ___, ___ P.3d ___ (No. 102495, filed 02/28/14). Hall tried to rape and kill a woman. Judge Braun ordered him to pay more than $32,000 in restitution, including $469 for relocation expenses incurred by the victim of the attempted rape. Hall alleged that the victim's relocation expenses were not caused by his crime and were improper under K.S.A. 21-4603d(b)(1). The Court disagreed and affirmed the judgment.

State v. Hall, ___ Kan. ___, ___ P.3d ___ (No. 102297, filed 06/28/13), affirming 45 Kan. App. 2d 290, 247 P.3d 1050 (2011). Hall stole from a veterinary clinic where she worked. She was convicted of theft and computer crime. Johnson County Judge Davis initially ordered Hall to pay about $10,000 in restitution. Defense counsel argued the amount was too much, and indicated he may challenge the amount at a later hearing. Judge Davis told him that any challenge should be filed within 30 days. After defendant filed her challenge, the judge ordered restitution of about $15,000. Hall contended the trial court did not have jurisdiction to increase the amount, and argued that retail value of the items stolen was an improper measure of the restitution amount since the clinic bought the items at wholesale prices. The Court of Appeals held that jurisdiction was properly reserved on the restitution amount, but agreed with Hall on the retail v. wholesale amounts. It said the assumed lost profit should not be included in the fair market value to be awarded as restitution. The Supreme Court focused on whether retail cost or wholesale cost is the appropriate measure of loss for determining restitution for stolen inventory, and concluded the answer should be: "It depends." It rejected a bright - line rule favoring either retail or wholesale cost and said the sentencing judge must evaluate the evidence, weigh all factors, and consider the facts and circumstances of each case to determine a value that will compensate the victim for the actual loss caused by the defendant's crime. It remanded for reconsideration of the restitution award.

State v. Dyer, ___ Kan.App.2d ___, ___ P.3d ___ (No. 91447, filed 4/1/2005). There must be substantial competent evidence to support the trial court's factual finding of causation between the crime and the victim's loss, and the court can only order restitution for losses or damages caused by the crime for which the defendant was convicted unless the defendant has agreed to pay for losses not caused directly or indirectly by the defendant's crimes. If a defendant acquiesces to a different amount, they cannot complain about the amount ordered.

State v. Hunziker, ___ Kan. ___, ___ P.3d ___ (No. 86861, filed 10/25/2002). Defendants pled to criminal damage and theft related to defendant's backhoe, which was totally destroyed. The trial court awarded restitution for the fair market value of the backhoe, value of lost work, expenses to cover, interest and attorney fees. Hunziker basically claimed restitution should be limited to the fair market value of the backhoe. The Supreme Court disagreed, finding nothing in the statutes that limits restitution to solely for damaged property. While they reversed the inclusion of attorney fees and touch up paint, they affirmed the award.

State v. Hymer, ___ Kan. ___, 26 P.3d 63 (2001). In the absence of an agreement by the defendant, the district court is limited to imposing restitution only for the offense for which the defendant is sentenced. Order to pay restitution imposed in a prior case was vacated.

State v. Bausch, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 85131, filed 8/17/2001). In an embezzlement case, it was proper for the trial court to award restitution requiring the defendant to pay for an audit of company books. Restitution is meant to compensate the victim and serve the functions of deterrence and rehabilitation of the guilty. State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999).

State v. Hymer, ___ Kan. App. 2d ___, 11 P.3d ___ (No. 83254, filed 9/22/2000). An unpaid order of restitution made in an earlier case may be imposed as a condition of probation in a subsequent case. If restitution is strictly a condition of probation that would be discharged if a defendant violated probation and served a jail sentence, it would be treated as such in the statutes. However, the statutes treat restitution as a separate order, different from all other conditions of probation. Further, journal entries list restitution under the "costs ordered" section of the journal entry, not the probation section. Restitution is an order from the court which can be enforced by the beneficiary of the order or by the court itself. The order does not disappear if the defendant violates probation and is sent to prison. See generally, Wininger v. Purdue University, 666 N.E. 2d 455 (Ind. App. 1996) (A restitution order is not discharged by completion of probationary period.).

State v. Cooper, 267 Kan. 15, 977 P.2d 960 (1988), Cooper pled no contest to aggravated battery. At sentencing, the State requested restitution but did not provide a specific amount. The State offered to specify the amount within 30 days, and the trial court ordered Cooper to pay restitution and ordered the State to provide the documentation supporting restitution within 30 days. Six months later, the state requested restitution in the amount of $4,890.86. The judge ordered Cooper to pay $2,500 in restitution as an additional condition of probation. The Court of Appeals reversed, holding the district court had lost jurisdiction, stating that a court has no jurisdiction to modify a sentence more than 120 days after imposition of the original sentence. State v. Hooks, 256 Kan. 869, 870, 888 P.2d 853 (1995). The Supreme Court reversed, holding the Court of Appeals erred in applying Hooks, a pre-guideline case and holding that the sentence was not illegal and the trial court did not abuse its discretion in considering the state's tardy request for restitution.

State v. Schulze, ___ Kan. ___, ___ P.3d ___ (No. 82,134, filed 7/9/1999). District court has jurisdiction to modify or suspend restitution. Schulze pled guilty to aggravated battery. At the time of the plea, the amount of restitution was unknown. Restitution in an unknown amount was ordered, and Schulze was placed on 36 months' probation. Some 5 months later, restitution was determined to be $14,026.92. A year later Schulze filed a motion to modify restitution. The State opposed the motion. The district court released Schulze from the remainder of the restitution requirement with the caveat that "[s]hould the defendant's situation change and he comes into an unexpected revenue, or his income increases dramatically between now and the end of his regular probation, then I'll advise Ms. Minor and the Court will take another look at it." No abuse of discretion in doing so.

Self Representation

State v. Jones, 290 Kan. 373, 378, 228 P.3d 394 (2010). finding structural error in the district court's erroneous refusal to permit the defendant to represent himself.

Indiana v. Edwards, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-208, filed 6/19/2008). Edwards was charged with attempted murder and other crimes for a shooting during his attempt to steal a pair of shoes. His mental condition became the subject of three competency proceedings and two self-representation requests, mostly before the same trial judge. Referring to the lengthy record of psychiatric reports, the trial court noted that Edwards suffered from schizophrenia and concluded that, although it appeared he was competent to stand trial, he was not competent to defend himself at trial. The court therefore denied Edwards' self-representation request. He was represented by appointed counsel at trial and convicted on two counts. Indiana's intermediate appellate court ordered a new trial, agreeing with Edwards that the trial court's refusal to permit him to represent himself deprived him of his constitutional right of self-representation under the Sixth Amendment and Faretta v. California, 422 U. S. 806. Although finding that the record provided substantial support for the trial court's ruling, the Indiana Supreme Court nonetheless affirmed the intermediate appellate court on the ground that Faretta and Godinez v. Moran, 509 U.S. 389 , required the State to allow Edwards to represent himself. The United States Supreme Court disagreed, holding the Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.


State v. Brown, ___ Kan. ___ (No. 113751, filed 03/01/19). Brown was convicted of aggravated sodomy and sentenced to 360 months. He appealed and a panel of the Court of Appeals vacated Brown's sentence on appeal because the district judge had stated his reasons for the first departure on the record but had not done so for the second departure, as required by K.S.A. 2017 Supp. 21-6815(a). On remand, the judge imposes a harsher sentence, 372 months. The extra 12 months appeared to result from comments by the victim's mother and the prosecutor, and they

advocated for a longer sentence purely because of Brown's successful appeal. The Supreme Court found this was a vindictive resentencing on remand after a successful criminal appeal which violated Brown's due process rights. The Court vacated his sentence and remanded to the district court for another resentencing.

State v. Lehman, ___ Kan. ___ (No. 112500, filed 09/28/18).When a person completes his or her original criminal sentence—even if an illegal sentence—without a court order that superseded the judgment of the original sentencing judge, that person is deemed to be discharged from custody and no longer subject to the jurisdiction of the criminal justice system. Any additional sentence for the same offense, imposed on a person who has completed his or her original, unmodified sentence constitutes a multiple punishment proscribed by the double jeopardy provisions of our federal and state constitutions. Here Lehman was originally sentenced to 31 months in prison with 24 months' postrelease supervision. Three years later, the state claimed that lifetime postrelease supervision was required. The district court modified the sente

nce. The Supreme Court reversed.

 State v. Brune, ___ Kan. ___ (No. 116720, filed 02/02/18). It is generally within a sentencing judge's discretion to determine whether a sentence should run concurrent with or consecutive to another sentence. Brune killed two people during a burglary. He pled to two counts of felony murder and Judge Welch sentenced him to two consecutive hard 25 sentences. Finding no abuse of discretion, the Supreme Court affirmed.

Betterman v. Montana, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–1457, filed 05/19/16). Betterman pleaded guilty to bail jumping after failing to appear in court on domestic assault charges. He was then jailed for over 14 months awaiting sentence, in large part due to institutional delay. He was eventually sentenced to seven years’ imprisonment, with four of the years suspended. Arguing that the 14-month gap between conviction and sentencing violated his speedy trial right, Betterman appealed, but the Montana Supreme Court affirmed the conviction and sentence, ruling that the Sixth Amendment’s Speedy Trial Clause does not apply to postconviction, presentencing delay. The Supreme Court agreed. The Sixth Amendment’s speedy trial guarantee does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.

State v. McKnight, ___ Kan. ___, ___ P.3d ___ (No. 100246, filed 08/12/11). Judge Parrish sentenced the defendant to 30 months and 24 months post-release, then suspended the sentence and granted probation. When McKnight violated the terms of his probation, Judge Parrish imposed a 22 month sentence with no postrelease supervision. The state later convinced her it was an illegal sentence and she reimposed the 24 months of postrelease. The Supreme Court reversed, holding that once a legal sentence is pronounced from the bench, the trial court does not have jurisdiction to modify the sentence. The sentence is effective upon pronouncement from the bench, regardless of the court's intent at the time the sentence is pronounced.

State v. Spencer, ___ Kan. ___, ___ P.3d ___ (No. 101077, filed 03/18/11). Jude Dowd abused his discretion by granting probation to a sex offender who molested his grandaughter and greatgrandaughter. The version of Jessica's law in effect at the time required a hard 25 sentence. "Although an abuse of discretion standard is always difficult for any appellant to meet, Judge Dowd's overall performance at this sentencing was inadequate. He disregarded undisputed evidence. He failed to conduct an appropriate weighing of competing information. His belated, defense-scripted effort to improve upon his performance only served to emphasize its original deficiencies. We therefore hold, under the circumstances of this case, that Judge Dowd abused his discretion in granting the departure from Jessica's Law."

State v. Jackson, ___ Kan. ___, ___ P.3d ___ (No. 100807, filed 08/20/10). Statutory mandates regarding sentencing such as lifetime offender registration or standard probation conditions are operative when included in a sentencing journal entry even if the judge did not mention them in open court. See also State v. Baldwin, 37 Kan. App. 2d 140, 143, 150 P.3d 325 (2007).

State v. Easterling, ___ Kan. ___, ___ P.3d ___ (No. 100,454, filed 08/07/09). Judge Leuenberger did not err in rejecting a proposed 118-month agreed upon sentence for two counts of indecent liberties and instead imposing a hard 25 sentence. Easterling pled to two indecent liberties involving his grandaughter. In a post-Miranda interview, he also admitted to sexually abusing his own daughter back in the '80s, which Heather Stults-Lindsay recorded in her affidavit. It was proper to consider this prior bad act at sentencing, and the sentence imposed was not cruel or unusual.

State v, Schad, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,445 filed 04/24/09). Schad, who lives in the small town of Hudson, Kansas (pop. 133) pled to one count of aggravated indecent solicitation for bathing with, and inappropriate touching of his grandaughters. The judge ordered as a condition of probation that he place signs around his house and on his car stating he was a sex offender. The Court of Appeals held those conditions were not reasonably related to the rehabilitative goal of probation or to the protection of the victim and society. The signage conditions made Schad an object of condemnation and ridicule and only confirmed society's outrage against Schad. Calling them a "punitive measure not reasonably related to rehabilitation," they Court held the conditions imposed were not expressly or implicitly authorized by K.S.A. 21-4610(c) and were thus illegal.

State v. Trostle (Hanson), ___ Kan.App.2d ___, ___ P.3d ____ (No. 99,960, filed 02/06/09). A district court does not have jurisidiction to modify a sentence once imposed, dispite an asserted "reservation of jurisdiction to consider alternatives to incarceration." Defendant pled to felony DUI and received a one-year sentence. The court reserved jurisdiction to modify the sentence after nine months, and granted release on electronic monitoring. The Court of Appeals held it was an illegal modification of sentence.

Shackles, Use of at Trial

State v. Anderson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,602, filed 09/26/08). Defendant and his babies' momma went to a meeting with SRS, and became irate when informed the state had placed their children into emergency custody. Defendant threatened to bomb SRS, kill SRS employees and kill the foster parents. Police stopped defendant's vehicle after he left the meeting, and found drugs and paraphernalia in a camouflage jacket. Babies' momma said the jacket was hers, but then Defendant said it was his. Defendant was charged with criminal threat and possession. At trial he said he only claimed ownership of the jacket to keep babies' momma out of jail. During trial the judge denied the defense motion that his client not be shackled. The jury convicted him of both counts. The Court of Appeals reversed, finding an abuse of discretion by the trial judge simply deferred to the jailer who wanted Defendant in shackles.


United States v. Haymond, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 17-1672, filed 06/27/19). Haymond possessed child pornography, a crime that carries a prison term of zero to 10 years. After serving a prison sentence of 38 months, and while on supervised release, Haymond was again found with what appeared to be child pornography. The government sought to revoke his supervised release and secure a new and additional prison sentence. A district judge, acting without a jury, found by a preponderance of the evidence that Mr. Haymond knowingly downloaded and possessed child pornography. Under 18 U. S. C. §3583(e)(3), the judge could have sentenced him to a prison term of between zero and two additional years. But because possession of child pornography is an enumerated offense under §3583(k), the judge instead imposed that provision’s 5- year mandatory minimum. On appeal, the Tenth Circuit observed that whereas a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years, this new prison term included a new and higher mandatory minimum resting on facts found only by a judge by a preponderance of the evidence. The Tenth Circuit therefore held that §3583(k) violated the right to trial by jury guaranteed by the Fifth and Sixth Amendments. A majority of the Supreme Court agreed. “Only a jury, acting

on proof beyond a reasonable doubt, may take a person’s liberty.” Gorsuch, Ginsburg, Sotomayor, and Kagan, concluded that the application of §3583(k) in this case violated Mr. Haymond’s right to trial by jury. Bryer concurred. A mandatory minimum 5-year sentence that comes into play only as a result of additional judicial factual findings by a preponderance of the evidence cannot stand. Alito, Roberts, Thomas and Kavanaugh dissented. The contend the plurality decision threatens the foundation of the entire supervised release system. "All supervised-release revocation proceedings must be conducted in compliance with the Sixth Amendment— which means that the defendant is entitled to a jury trial, which means that as a practical matter supervised-release revocation proceedings cannot be held."

Oregon v. Ice, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-901, filed 01/14/09). Ice twice entered an 11-year-old girl's residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim's vagina; and first-degree sexual assault for touching her breasts. Ice was sentenced under a state statute providing, generally, for concurrent sentences, Ore. Rev. Stat. sec.137.123(1), but allowing the judge to impose consecutive sentences in these circumstances: (1) when "a defendant is simultaneously sentenced for ...offenses that do not arise from the same ... course of conduct," sec.137.123(2), and (2) when offenses arise from the same course of conduct, if the judge finds either "(a) [t]hat the ... offense ... was an indication of defendant's willingness to commit more than one criminal offense; or ... "(b) [t]he ... offense ... caused or created a risk of causing greater or qualitatively different ... harm to the victim," sec.137.123(5). The trial judge first found that the two burglaries constituted separate incidents and exercised his discretion to impose consecutive sentences for those crimes under sec.137.123(2). The court then found that each offense of touching the victim's vagina met sec.137.123(5)'s two criteria, giving the judge discretion to impose the sentences for those offenses consecutive to the two associated burglary sentences. The court elected to do so, but ordered that the sentences for touching the victim's breasts run concurrently with the other sentences. On appeal, Ice argued, inter alia, that the sentencing statute was unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 , and Blakely v. Washington, 542 U. S. 296 , holding that the Sixth Amendment's jury-trial guarantee requires that the jury, rather than the judge, determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular crime. The appellate court affirmed, but the Oregon Supreme Court reversed, holding that the Apprendi rule applied because the imposition of consecutive sentences increased Ice's quantum of punishment. The United States Supreme Court, in a 5-4 decision, reversed. In light of historical practice and the States' authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. The Court is cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U. S. 197. There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury's domain as a bulwark at trial between the State and the accused. Instead, the defendant--who historically may have faced consecutive sentences by default--has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice. Ice's argument that he is "entitled" to concurrent sentences absent the factfindings Oregon law requires is rejected. Because the scope of the federal constitutional jury right must be informed by the jury's historical common-law role, that right does not attach to every contemporary state-law "entitlement" to predicate findings. This Court should not diminish the States' sovereign authority over the administration of their criminal justice systems absent impelling reason to do so. Limiting judicial discretion to impose consecutive sentences serves the "salutary objectives" of promoting sentences proportionate to "the gravity of the offense," Blakely, 542 U. S., at 308, and of reducing disparities in sentence length. All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor the Court's Sixth Amendment traditions compel straitjacketing the States in that manner. Further, the potential intrusion of Apprendi's rule into other state initiatives on sentencing choices or accoutrements--for example, permitting trial judges to find facts about the offense's nature or the defendant's character in determining the length of supervised release, required attendance at drug rehabilitation programs or terms of community service, and the imposition of fines and restitution--would cut the rule loose from its moorings.

State v. McCarley, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95,818, filed 7/27/2007). Where the state stipulates that the PSI is correct, and the judge imposes a sentence based on the PSI, the state cannot thereafter file a motion to correct illegal sentence and file a direct appeal from its denial. It may, however, proceed on a question reserved. The court of appeals held the underlying sentence was not illegal because the state invited the error (one judge dissenting).

Cunningham v. California, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05-6551, filed 1/22/2007) Petitioner Cunningham was tried and convicted of continuous sexual abuse of a child under 14. Under California's determinate sentencing law (DSL), that offense is punishable by one of three precise terms of imprisonment: a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. The DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional 'circumstances in aggravation.' Court Rules adopted to implement the DSL define 'circumstances in aggravation' as facts that justify the upper term. Those facts, the Rules provide, must be established by a preponderance of the evidence. Based on a post-trial sentencing hearing, the judge found by a preponderance of the evidence six aggravating facts, including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct. Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years.

Held: The DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. In Apprendi v. New Jersey, this Court held that, under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. Blakely and Booker bear most closely on the question presented here. Following the reasoning in those cases, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by the judge, and need only be established by a preponderance of the evidence, the DSL violates the rule of Apprendi.

United States v. Cage, ___ F.3d ___ (10th Cir. No. 05-2079, filed 6/8/2006). A sentence of six day's imprisonment plus supervised release for conspiracy to distribute a mixture and substance containing methamphetamine and using a telephone to facilitate a drug trafficking offense is reversed where the facts of the case did not justify an extreme divergence from the advisory guidelines range, and thus, the district court's sentencing decision was unreasonable.

Speedy Trial

State v. Hammerschmidt, ___ Kan.App.2d ___ (No. 120016, filed 11/08/19). Defendant was charged with DUI and filed a motion to suppress the breath test. The district court continued the matter several times awaiting the outcomes of Ryce and Nece. 360 days after those decisions were filed, and 600 days after the motion to suppress was filed the district court denied the motion to suppress. Defendant then filed a motion to dismiss for lack of a speedy trial, which the district court granted. The state appealed, claiming K.S.A. 2018 Supp. 22-3402(g) bars dismissal. The Court of Appeals agreed and reversed. It said that regardless of the novel issues raised, a motion to suppress remaining under advisement for nearly a year is unreasonable. However, it also said the Legislature has removed the remedy of dismissal when a district court later attributes delays to the State that were originally attributable to a defendant. See K.S.A. 2018 Supp. 22-3402(g).

State v. Spencer Gifts, LLC, ___ Kan. ___, ___ P.3d ___ (No. 111398, filed 07/08/16). Johnson County prosecutors charged Spencer Gifts (in 2010) with various promotion of pornography charges. Spencer kept continuing the trial, and eventually moved to dismiss based on lack of a speedy trial. The district court dismissed the charges, even though Spencer was not "held to answer on an appearance bond as required by K.S.A. 2015 Supp. 22-3402(b). The Court of Appeals, in a split decision, affirmed the dismissal based on City of Elkhart v. Bollacker, 243 Kan. 543, 546, 757 P.2d 311 (1988), which held the legislature intended for 22-3402(2)—now 22-3402(b)— to apply even when a defendant had not been held on an appearance bond. The Court agrees with the State that K.S.A. 2015 Supp. 22-3402(b) unambiguously limits its application to cases in which a defendant has posted an appearance bond, and agrees that Bollacker should be overruled. Nevertheless, we affirm the application of Bollacker in this case because it formed the law that controlled the defendant's motion to dismiss, and we do not apply today's change in the law to eradicate a vested right to a speedy trial defense.

State v. Gill, 48 Kan.App.2d 102, 283 P.23d 236 (2012), rev. denied ___ Kan. ___ 2014). Under United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), once the State dismisses charges against a defendant, the Sixth Amendment's speedy trial guarantee is no longer applicable. Thus, if the State dismisses charges against a defendant and then later refiles charges, the time period during which no charges were pending against the defendant generally will not be considered as part of the delay in bringing a defendant to trial for constitutional speedy trial purposes. The Court in MacDonald, 456 U.S.

1, 10 n. 12, indirectly suggested that bad faith on the part of the State in dismissing and refiling charges against a defendant could result in the time period between dismissal and refiling being considered as part of the delay in bringing a defendant to trial for speedy trial purposes. The State acts in bad faith when it dismisses charges in order to evade the Sixth Amendment's speedy trial guarantee. When the State dismisses a charge against a defendant but later files another charge, the constitutional speedy trial clock will start anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed. If, however, the first case was not dismissed because of necessity and the charge in the second case is identical to the charge previously dismissed, then the dismissal of the first case will be construed as merely tolling the constitutional speedy trial clock. Accordingly, the time period before dismissal and the time period after the charge was reinstated will constitute the applicable length of delay for constitutional speedy trial purposes.

State v. Pennington, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100278, filed 03/26/10). Where a defendant requests a continuance or acquiesces in a continuance beyond a speedy trial deadline he waives his speedy trial rights unless he revokes the waiver and makes the state aware of it. In this case defendant never made the state aware of the revocation of the waiver. Arraignment occurred on February 23. Trial was scheduled for May 21. On May 4, defense counsel withdrew and Pennington requested a continuance to allow his new counsel to prepare. The court later set the trial more than 90 days after the original trial deadline, on September 17. Although the court erred in setting the trial beyond the time called for by K.S.A. 22-3402(3), here the state was never aware of Pennington's alleged revocation until he moved to dismiss the week before trial.

State v. Blizzard, ___ Kan.App.2d ___, ___ P.3d ____ (No. 99914, filed 03/12/10). Where a district court dismisses a case, the state appeals and the defendant is released from his bond after the dismissal, the speedy trial clock begins running again when defendant was ordered to post an appearance bond.

State v. Montes-Mata, 41 Kan.App.2d 1078, 208 P.3d 770 (2009) (No. 98883, filed 05/29/2009), affirmed ___ Kan. ___ No. 98883, 6/24/11). Defendant was arrested on drug charges. He pled. While awaiting sentencing, the Sheriff's Department receive an I-247 form from DHS (ICE) that repeatedly referred to itself as an "immigration hold." Defendant's lawyer was allowed to withdraw, and prior to sentencing his new lawyer filed a motion to dismiss for lack of speedy trial. The state argued that due to the ICE hold, defendant was not held "solely by reason" of the drug charges. The Court of Appeals disagreed. Relying on an Ohio case interpreting 8 C.F.R. § 287.7(a), the court construed the detainer as merely a request for the holding agency to notify ICE before release of the alien. Finding that 111 days elapsed chargeable to the state, the Court dismissed the charge pursuant to K.S.A. 22-3402.

Vermont v. Brillion, 555 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-88, filed 03/09/09). In July 2001, respondent Brillon was arrested on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. During the time between his arrest and his trial, at least six different attorneys were appointed to represent him. Brillon "fired" his first attorney, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. His fourth lawyer served from June 2002 until November 2002, when the trial court released him from the case. His fifth lawyer, assigned two months later, withdrew in April 2003. Four months thereafter, his sixth lawyer was assigned, and she took the case to trial in June 2004.

            The trial court denied Brillon's motion to dismiss for want of a speedy trial. The Vermont Supreme Court, however, reversed, holding that Brillon's conviction must be vacated, and the charges against him dismissed, because the State did not accord him the speedy trial required by the Sixth Amendment. Citing the balancing test this Court stated in Barker v. Wingo, 407 U. S. 514 , the Vermont Supreme Court concluded that all four factors described in Barker--"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant," id., at 530--weighed against the State. Weighing heavily in Brillon's favor, the Vermont court said, the three-year delay in bringing him to trial was "extreme." In assessing the reasons for that delay, the court separately considered the period of each counsel's representation. It acknowledged that the first year, when Brillon was represented by his first and third lawyers, should not count against the State.

But the court counted much of the remaining two years against the State. Delays in that period, the court determined, were caused, for the most part, by the failure or unwillingness of several of the assigned counsel, over an inordinate period of time, to move the case forward. As for the third and fourth Barker v. Wingo factors, the court found that Brillon repeatedly and adamantly demanded a trial and that his lengthy pretrial incarceration was prejudicial.

  Held: The Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent.

Pp. 6-11.

  (a) Primarily at issue here is the reason for the delay in Brillon's trial. In applying Barker, the Court has asked "whether the government or the criminal defendant is more to blame for th[e] delay." Doggett v. United States, 505 U. S. 647 . Delay "to hamper the defense" weighs heavily against the prosecution, Barker, 407 U. S., at 531, while delay caused by the defense weighs against the defendant, id., at 529. Because "the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation," delay caused by the defendant's counsel is charged against the defendant. Coleman v. Thompson,

501 U. S. 722 . The same principle applies whether counsel is privately retained or publicly assigned, for " '[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.' " Polk County v. Dodson, 454 U. S. 312 . Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor. Pp.


  (b) Although the balance arrived at in close cases ordinarily would not prompt this Court's review, the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court's correction. The court erred in attributing to the State delays caused by the failure of several assigned counsel to move Brillon's case forward and in failing adequately to take into account the role of Brillon's disruptive behavior in the overall balance.

Pp. 8-11.

(1) An assigned counsel's failure to move the case forward does not warrant attribution of delay to the State. Most of the delay the Vermont court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel, each of whom requested time extensions.

Their inability or unwillingness to move the case forward may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic.

Yet the same considerations would not attend a privately retained counsel's requests for time extensions. There is no justification for treating defendants' speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. Pp. 9-10.

  (2) The Vermont Supreme Court further erred by treating the period of each counsel's representation discretely.

The court failed appropriately to take into account Brillon's role during the first year of delay. Brillon sought to dismiss his first attorney on the eve of trial. His strident, aggressive behavior with regard to his third attorney further impeded prompt trial and likely made it more difficult for the Defender General's office to find replacement counsel.

Absent Brillon's efforts to force the withdrawal of his first and third attorneys, no speedy-trial issue would have arisen. Pp. 10-11.

  (c) The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic breakdown in the public defender system could be charged to the State. Cf. Polk County, 454 U.

S., at 324-325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon's case.

P. 11.

  955 A. 2d 1108, reversed and remanded.

  Ginsburg, J,. delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.

State v. Vaughn, ___ Kan. ___, ___ P.3d ___ (No. 98,840, filed 01/30/09). The record is insufficient to determine whether defendant acquiesced in delay that pushed his trial beyond the 180-day limit. Defendant was arraigned on 08/15/06 and set for trial on 10/16/06. On that date, defendant filed a motion to dismiss and motion to suppress. The parties agreed to continue the matter until 12/05/06. Several judges recused themselves, then Judge Lyle was assigned. Lyle said he may have a conflict with defense counsel and continued the matter to 02/07/07. Lyle suffered some health problems and on 02/02/07, defense counsel sent the state a letter saying the matter was continued to 03/29/07. Lyle was still ill, and the matter was rescheduled to 05/11/07. On that date, defense counsel made an oral motion to dismiss due to speedy trial concerns, which the district court granted. The Supreme Court reversed and remanded for a determination on whether the defendant acquiesced to one of the delays after 12/05/06. The Court rejected the contention that all this 207-day delay was chargeable to the defendant, finding that was an unreasonable delay to decide a motion and judicial procrastination is not the defendant's fault. The court also rejected the contention that a judges illness should be an exception to the statute, finding such a determination should come from the legislature. It charged the state with 59 days from 12/05/06 to February 2, 2007, and 43 days between 03/29/07 and 05/11/07 because defendant neither sought nor acquiesced in this delay. The record did not contain enough information to determine whether defendant acquiesced in the 55-day delay between 02/02/07 and 03/29/07.

State v. Bryant, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,192 filed 9/5/08). Where defendant requests a plea hearing, but the plea falls through, the time between the trial date and the plea hearing is chargeable to the defendant for speedy trial purposes.

State v. Watkins, ___ Kan.App.2d ___, ___ P.3d ____ (No. 96,804, filed 10/05/07, published 8/6/08). Lying to a cop about your identity while you have an unserved warrant, along with other reasonable steps to serve the warrant will result in denial of a speedy trial motion. The offenses occurred in February and March 2003, and Watkins was charged in April 2003. After issuance of the warrant, officers told detectives to look for Watkins near Douglass Kansas. They entered the warrant into NCIC on 2/23/04. Six days later Watkins was stopped in Wichita and used her sister's name and date of birth. In March 2004, Butler County officers requested Sedgwick County officers to look for Watkins in several places. They looked but could not locate her. Watkins was arrested in Sedgwick County in July 2004, and May 2005, but they apparently did not run her through NCIC. She was arrested on the warrant on 5/6/2005.

New York v. Hill, 528 U. S. 110 . An attorney, acting without indication of particular consent from his client, could waive his client's statutory right to a speedy trial because "[s]cheduling matters are plainly among those for which agreement by counsel generally controls.

United States v. Williams, ___ F.3d ___ (10th Cir. No. 06-5036, filed 12/20/2007). A conviction and sentence for drug and firearm related offenses is reversed where the indictment required dismissal due to a failure to comply with the requirements of the Speedy Trial Act.

State v. Adams, 283 Kan. 365, 153 P.3d 512 (2007). Reaching a statutory speedy trial issue on its own motion, the Supreme Court reverses a conviction for possession of cocaine, conspiracy to possess cocaine and other drug crimes. Trial began on January 24, 2004, and resulted in a mistrial. It was next scheduled for March 5, 2004, and bumped by the court to May 25, 2004. On May 21, 2004, the prosecutor contacted the judge and surmised that the defendant would not appear because he had warrants in other cases. The judge changed the trial to a status conference. Defendant appeared with his counsel. The court suggested July 7, 2004, but the prosecutor had a conflict. The court suggested August 17, 2004, but defense counsel had a conflict. The court set trial for August 18, 2004. Immediately before trial, Adams requested dismissal for lack of a speedy trial. The district court denied the motion. The state argued that defendant waived his speedy trial by acquiescing to the continuance until August 18, 2004. The Supreme Court rejected the argument, noting it was the state that canceled the May 25, 2004, trial, and it was the state's burden to give the defendant a speedy trial.

Zedner v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 05-5992, filed 6/5/2006). Defendant's cannot prospectively waive "for all time" their right to a speedy trial under 18 U.S.C. 3161 et seq. because waiver is not specifically listed as an exception to the act. The act also takes account of the public interest in speedy trials. The public interest cannot be served if defendants can simply opt out of the act. Additionally, judicial estoppel does not apply because defendant did not take any action inconsistent with his motion to dismiss for lack of a speedy trial, and harmless error review is not appropriate for the trial judge's failure to make findings on the record. Remanded for dismissal with or without prejudice at the option of the district court. Scalia, concurring, says resort to legislative history is not necessary. "'We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: the judicial inquiry is complete.'" Zedner v. United States, ___ U.S. at ___, Scalia, J, concurring (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)).

State v. Biarda, ___ Kan.App.2d ___, ___ P.2d ___ (No. 83,508, filed 5/19/2000). Time attributable to an agreed request for a continuance to obtain diversion should generally be attributed to the defendant for the purpose of computing speedy trial compliance.

State v. Dozal, ___ Kan.App.2d ___, ___ P.2d ___ (No. 87690, filed 3/2003). State filed charged on 3/24/99 for offenses occurring on 7/21/98 & 8/4/98. State dismissed on 9/29/99, then refiled on 7/20/00 & received an arrest warrant. Only attempt to arrest was a letter from sheriff's department telling defendant to turn himself in within 10 days. Warrant was served on 10/12/00. Court of Appeals held the 84-day delay between issuance and service of the warrant was unreasonable pursuant to K.S.A. 21-3106(10).


State v. Merrills, ___ Kan.App.2d ___, ___ P.3d ___ (No. 95117, filed 1/122007). Imposition of consecutive sentences after remand was not presumptively vindictive in violation of the rules in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794,. 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) , and State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996). The sentence after remand was not more severe than the original concurrent sentences.

State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979). The state cannot avoid the time limitations of K.S.A. 22-3402(2) by dismissing an action then refiling the same charges absent a showing of necessity.

Withdrawal of Plea

State v. McCray, ___ Kan.App.2d ___, ___ P.2d ___ (No. 89726 filed 4/9/2004). In determining whether good cause has been shown to permit withdrawal of a plea under K.S.A. 2003 Supp. 22-3210(d), the district court must consider the following factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Bey, 270 Kan 544, 545, 17 P.3d 322 (2001). On appeal of a motion to withdraw plea, we review the district court's decision under an abuse of discretion standard. See K.S.A. 2003 Supp. 22-3210(d); State v. Morris, 254 Kan. 993, 1001, 869 P.2d 739 (1994). Discretion is abused only when no reasonable person would take the view adopted by the district court. The defendant bears the burden of establishing such an abuse of discretion. Bey, 270 Kan. at 545-46.

United States v. Benitez, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 03-167, cert. granted 12/8/03). The Supreme Court agreed Monday to give judges guidance on when they must throw out guilty pleas because of mistakes. Justices next spring will hear the case of a California man who pleaded guilty to drug charges and thought he would receive a briefer sentence than the 10 years he got. Prosecutors supported a lighter prison term, but a sentencing report revealed he had previous criminal convictions that made him ineligible for leniency. The judge had not warned Carlos Dominguez Benitez that his plea agreement did not allow him to withdraw his admission of guilt if he didn't get the recommended sentence. The San Francisco-based 9th U.S. Circuit Court of Appeals overturned the conviction because of the mistake. The Bush administration argued that despite the error, he shouldn't necessarily get a second chance. Courts, in considering such complaints, should take into account whether the person likely would have pleaded guilty even if they were told the information, Solicitor General Theodore Olson argued. Benitez was charged in 1999 after being arrested in Anaheim, Calif., in an undercover operation. Olson argued that the case is important because more than 95 percent of convictions in federal courts last year involved guilty pleas. It is unclear how often people want to withdraw those pleas.

Uncharged Crimes

State v. Thompson, ___ Kan.App.2d ___ (No. 117885, unpublished, filed 06/12/2020). James Dean Thompson was charged with attempted murder in the first-degree, three counts of aggravated assault, criminal discharge of a firearm at an occupied vehicle, and two counts aggravated endangering a child. A jury convicted Thompson of aggravated assault, criminal discharge of firearm, and aggravated endangering a child. In addition, the jury found Thompson to be guilty of the uncharged crime of aggravated battery. After he was sentenced, Thompson filed a timely notice of appeal. However, he only appealed his sentence. About a year later, Thompson filed an amended notice seeking to also appeal his convictions. The Court of Appeals remanded the case to the district court to determine whether an untimely appeal should be allowed based on the exceptions set forth in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). On remand, the district court found that no Ortiz exception is applicable. The Court of Appeals affirmed, finding the district court did not err in finding that none of the Ortiz exceptions justify the untimely appeal of Thompson's convictions. Nevertheless, it held that Thompson's aggravated battery conviction must be reversed for the reasons stated by the Kansas Supreme Court in State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000).

Verdict Forms

State v. Brown, ___ Kan. ___ (No. 115817, filed 06/05/2020). An ambiguous verdict can be reasonably interpreted in light of the charging document, the jury instructions, and the record as a whole to determine and give effect to the jury's intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form (voluntary manslaughter (charged offense) v. involuntary manslaughter (on mistaken verdict form) may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instructions. There is a strong presumption in favor of the literal text of the jury verdict as the surest guide to the jury's intentions. That presumption can only be overcome when the record as a whole clearly demonstrates a different intent and the district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. Reverses State v. Brown, No. 115,817, 2017 WL 5016171, at *1-2 (Kan. App. 2017) (unpublished opinion), which held, "Courts have to treat completed jury verdict forms in a criminal case as saying what they mean and meaning what they say. . . . [C]ourts cannot take it upon themselves to unilaterally fix ostensibly errant verdicts." 2017 WL 5016171, at *1.


State v. Bruce, ___ Kan. ___, ___ P.3d ___ (No. 105884, filed 11/02/12). K.S.A. 2011 Supp. 75-710, when read in conjunction with K.S.A. 2011 Supp. 22-2515(a)(1)-(20) to permit the Kansas Attorney General to delegate the power to apply for a wiretap order to an assistant attorney general is more permissive than 18 U.S.C. § 2616(2) (2006) and thus preempted. A wiretap order obtained under such a delegation violates a central provision of the federal statutory scheme, and the evidence obtained or derived from the wiretap must be suppressed.

Revised December 1, 2020