Appeal No. 124,071: State of Kansas v. Patrick Angelo Jr.

Appeal No. 124,071 archived oral argument

The Supreme Court affirmed in part and reversed in part the Wyandotte County District Court's summary denial of Angelo's petition for post-conviction DNA testing. Angelo was convicted of two counts of first-degree murder in 2005. He later petitioned for DNA testing of several items of evidence, including the victims' clothing, under K.S.A. 21-2512. That statute requires a district court to order DNA testing of biological material when the biological material meets threshold requirements for testing and DNA test results may produce noncumulative, exculpatory evidence.

In an opinion written by Justice K.J. Wall, the court affirmed the district court's summary denial of Angelo's petition as to the items of evidence he sought to have tested other than the victims' clothing because any potential biological material on those items did not meet the threshold requirements for testing required by statute. The court reversed the district court's holding that DNA testing of any presumed biological material on the clothing could not produce exculpatory evidence.

The court also recognized the parties apparently disputed whether biological material was actually present on the clothing and that factual dispute had not been resolved because of a lack of clarity regarding the proper procedures under K.S.A. 21-2512. The court thus interpreted K.S.A. 21-2512 to clarify the statute creates a three-step process leading up to a district court's decision whether to order testing. First, the inmate's petition must allege that biological material exists and satisfies the threshold statutory requirements for testing. Second, once the State has notice of the petition, it must preserve any remaining biological material that it previously secured in connection with the case and identify such biological material in its response. Finally, if the parties agree biological material meeting the threshold requirements exists, then they can proceed to argue whether testing of the biological material will produce noncumulative, exculpatory evidence. If the parties dispute the existence of such biological material, then they can present evidence to the district court for appropriate fact-finding. In the latter situation, the petitioner bears the burden to prove the existence of such biological material. The court then remanded the case to the district court for further proceedings consistent with the three-step process identified in the opinion. Justice Biles concurred in the result. 

Appeal No. 122,626: State of Kansas v. Johnathan Eli Carter

Appeal No. 122,626 archived oral argument

The Supreme Court affirms the Sedgwick County District Court after Carter appealed his convictions, arguing that the district court erred by giving felony-murder jury instructions that were not legally appropriate. Upon review, the Court finds no error with the district court's jury instructions and affirms Carter's convictions. 

Appeal No. 123,599: In the Interest of N.E., a Minor Child

Appeal No. 123,599 archived oral argument

The N.E., a child, was the subject of proceedings under the Revised Code for the Care of Children in Reno County District Court. After the district court terminated the parental rights of N.E.'s parents, the child's grandmother, I.E., appealed to a panel of the Court of Appeals, which dismissed for lack of jurisdiction. In a majority opinion written by Justice K.J. Wall, the Court held that the Revised Code's appellate jurisdiction statute, K.S.A. 38-2273(a), as construed under the Court's precedent, barred appellate review of each of the district court orders from which the grandmother had appealed. The Court determined that the doctrine of stare decisis warranted its continued adherence to its precedent, and, as a result, the Court affirmed the judgment of the Court of Appeals and dismissed for lack of jurisdiction. Justice Melissa Standridge filed a dissenting opinion in which she asserted that the Court should depart from its precedent construing K.S.A. 38-2273(a). In Justice Standridge's view, the Court had jurisdiction to address two of the orders from which the grandmother had appealed.

Case No. 124,955: In the Matter of Jason M. Janoski

Case No. 124,955 archived oral argument

 The Supreme Court suspends Janoski from the practice of law for one year for violations of Kansas Rules of Professional Conduct 3.1 (meritorious claims), 3.4 (fairness to opposing party and counsel), 4.2 (communication with a represented person), 8.3 (reporting professional misconduct), 8.4(c) (engaging in professional misconduct that involves dishonesty), 8.4(d) (engaging in professional misconduct prejudicial to the administration of justice), 8.4(g) (engaging in professional misconduct that adversely reflects on the lawyer's fitness as a lawyer), and Supreme Court Rule 219 (reporting a criminal charge). This suspension is effective September 2.

Appeal No. 122,682: State of Kansas v. Ty R. Zeiner

Appeal No. 122,682 archived oral argument

The Supreme Court reversed the judgment of the Court of Appeals and Marion County District Court and remanded for a new trial. Zeiner was convicted of driving while intoxicated after he was found in his SUV, which was parked and not running, while he was intoxicated and asleep inside the vehicle at approximately 3:30 in the morning. Justice Stegall, writing for a unanimous court, held that the jury instruction error failing to define "operate" as "drive" under K.S.A. 8-1567(a)(3) was not harmless given the confusing testimony offered by the Sherriff's office in the trial record.

Appeal No. 122,758: State of Kansas v. Corey A. Eubanks

Appeal No. 122,758 archived oral argument 

After the State charged Eubanks with burglary and two counts of felony theft, he pled no contest to an amended charge of attempted theft. The Douglas County District Court imposed a 10-month prison sentence and ordered Eubanks to pay restitution to the two victims of the burglary and theft as a condition of his postrelease supervision. On direct appeal, a Court of Appeals panel affirmed the district court's award of restitution but remanded for the district court to issue a new journal entry clarifying the payment of restitution was a condition of postrelease supervision. On review, the Court affirmed in part and reversed in part. In a unanimous opinion written by Justice Melissa Standridge, the Court affirmed the panel's decision concluding the district court's restitution order did not result in an illegal sentence. The Court also affirmed the panel's decision concluding the terms orally stated on the record at the plea hearing included an agreement to pay restitution to both victims. Finally, the Court reversed the panel's remand order directing the district court to issue a new journal entry, holding that K.S.A. 2020 Supp. 22-3717(n) does not require the journal entry to specify that restitution be paid as a condition of postrelease supervision.

Appeal No. 122,252: State of Kansas v. Carrody M. Buchhorn

Appeal No. 122,252 archived oral argument

Buchhorn was convicted of second-degree murder after a child died unexpectedly at the home daycare where she worked. A Court of Appeals panel reversed Buchhorn's conviction and remanded for a new trial because her trial counsel's constitutionally deficient performance prejudiced her right to a fair trial. On review to the Kansas Supreme Court, the six justices who heard the case were equally divided on how the issues on appeal should be decided. As a result, the Court of Appeals judgment reversing the Douglas County District Court and remanding with directions stands. The Supreme Court dismissed as moot Buchhorn's cross-petition for review.

Appeal No. 123,323: State of Kansas v. Rachael C. Hilyard

Appeal No. 123,323 archived oral argument 

The Supreme Court heard this case on a special evening docket April 6 in Great Bend.

The Supreme Court affirms the first-degree premeditated murder conviction and hard 50 prison sentence of Hilyard after she appealed on theories of insufficient evidence, jury instruction error, prosecutorial error, ineffective assistance of counsel, and abuse of discretion by the Sedgwick County District Court. Finding no error, the Supreme Court affirms her conviction and sentence.

Appeal No. 121,447: Catherine Roll, a disabled person, by and through her co-guardians Teresa Roll Kerwick and Mary Ann Burns v. Laura Howard, Secretary of the Kansas Department for Aging and Disability Services, and Mike Dixon, Superintendent of the Parsons State Hospital and Training Center

Appeal No. 121,447 archived oral argument

Roll has had significant mental and physical disabilities since childhood. She has resided at the Parsons State Hospital since 1970. Her parents died in the late 1990s and her sisters became her legal guardians in 2002. In spring 2016, the hospital faced major budget reductions and decided to transfer Roll to either a community care institution or home care. The guardians filed a petition in Sedgwick County District Court seeking to enjoin the hospital from transferring her out of the facility where she had lived for 46 years. The guardians asserted that Roll was protected from the transfer by both the Americans with Disabilities Act and the Medicaid provisions of the Social Security Act.

The district court granted an ex parte temporary restraining order preventing the transfer. Following an evidentiary hearing, the district court ruled in favor of the defendants and denied Roll’s request for an injunction. The court stayed the transfer, however, pending appeal. The Court of Appeals affirmed the district court, and the Supreme Court granted Roll’s petition for review. Following briefing and oral argument, but before the Supreme Court issued an opinion, the defendants filed a notice informing the Court that Roll had recently experienced a significant decline in her physical and mental health and the defendants no longer considered transfer to community-based treatment to be a viable option. Considering these changed circumstances, the defendants requested that the Supreme Court dismiss the appeal as moot and vacate both the district court and Court of Appeals judgments. Roll contested dismissal and, contending she had prevailed in the litigation, filed motions for attorney fees and costs totaling over $165,000.

In a per curium decision, the Supreme Court dismissed the appeal as moot. The Court determined that, because of Roll’s declining capacity, the defendants were no longer seeking to remove her from the hospital and were voluntarily providing the relief she had been seeking. Because the Court could not provide a decision on the merits that would have any bearing on the rights of the parties, the case had become moot and the Court would not give an advisory opinion. As a correlate to finding the litigation moot, the Court declined to order the defendants to pay Roll’s requested costs and attorney fees. The Court held that, because she had not prevailed at any stage of the litigation, Roll was not the “prevailing party” as required for an award of attorney fees under federal civil rights statutes. The Court cautioned against relying on the Court of Appeals decision for precedential value.

Justice Eric Rosen, joined by Justice Dan Biles, filed a dissenting opinion. The dissent argued the district court and the Court of Appeals erred in finding Roll had no active treatment needs and in denying her petition for relief under the Medicaid Act and related regulations. The dissent then argued the appeal was not moot and Roll had prevailed for attorney-fee purposes because her persistent attempt to protect her rights through litigation allowed her to remain in the hospital. For that reason, the dissent contended, the defendants should not be rewarded for withdrawing at the last minute their resistance to her continued treatment at the hospital, shortly before the Supreme Court would have ruled on the merits of the appeal.

Appeal No. 122,007: City of Wichita v. Arlando Trotter

Appeal No. 122,007 archived oral argument 

The Supreme Court affirms in part and reverses in part the Court of Appeals decision reversing the Sedgwick District Court's dismissal of two criminal charges against Trotter under Wichita Municipal Ordinances 3.06.030.A. and 3.30.030.A. After the Wichita Municipal Court convicted Trotter of both offenses, the district court vacated the convictions on appeal and then dismissed the charges, finding that W.M.O. 3.06.030.A was unconstitutionally overbroad in violation of the First Amendment to the United States Constitution. The Court of Appeals reversed the dismissal of both charges, finding that the ordinance was not overbroad and further concluding, sua sponte, that the district court had erred in dismissing a second charge under a separate statute. The Supreme Court unanimously reversed the Court of Appeals on both grounds, concluding that the ordinance was unconstitutionally overbroad and that the panel erred by sua sponte raising the propriety of the second dismissal because the city had waived the issue in its briefing. The Supreme Court thus affirmed the district court's dismissal of Trotter's charges. Finally, the Supreme Court also affirmed the Court of Appeals rejection of a Fourth Amendment related claim Trotter raised under the overbreadth analysis.

Appeal No. 122,039: State of Kansas v. Johnny C. White

Appeal No. 122,039 archived oral argument

The Supreme Court affirmed White's conviction for aggravated indecent liberties with a child. White argued four grounds for reversal on appeal: First, that his right to present a defense was violated by the Sedgwick County District Court's exclusion of the fact that he took a polygraph; second, that the district court abused its discretion when it permitted the State to amend the date range of his offense based on the victim's trial testimony; third, that the admission of a videotaped confession White gave in 2014 regarding a prior similar crime was reversible error; and lastly that cumulative error denied him a fair trial. Justice Stegall, writing for a unanimous Court, agreed with the Court of Appeals that even if admission of the videotaped confession was an error, it was harmless given the other evidence presented at trial. The Court found no other trial errors and affirmed White's conviction.

Appeal No. 124,415: Mark A. Bruce v. Laura Kelly, in her official capacity as governor of the State of Kansas; Will Lawrence, in his individual capacity as Chief of Staff to Governor Laura Kelly; and Herman T. Jones, in his official and individual capacities as Superintendent of the Kansas Highway Patrol

Appeal No. 124,415 archived oral argument

The Supreme Court heard this case on a special evening docket April 6 in Great Bend.

The Supreme Court answered two certified questions arising from a federal lawsuit filed by former Kansas Highway Patrol Superintendent Bruce against Gov. Kelly, Kelly's chief of staff, and the current Kansas Highway Patrol superintendent. Bruce claims he was forced to resign from the Kansas Highway Patrol after his term as superintendent ended, even though a Kansas statute, K.S.A. 74-2113, granted him the right to continued employment at his former rank of major. The defendants moved to dismiss Bruce's lawsuit, arguing Bruce had no right to continued employment with the Kansas Highway Patrol.

The U.S. District Court for the District of Kansas determined the merits of the motion to dismiss turned on two legal questions for which there was no controlling Kansas precedent, and thus certified those two questions to the Kansas Supreme Court. First, because only employees in classified positions in the Kansas civil service have a right to continued employment, the federal district court asked whether K.S.A. 74-2113 defines the rank of major within the Kansas Highway Patrol as a classified or unclassified position. Second, because employees serving a probationary period do not have a right to continued employment, the federal district court asked whether a Kansas administrative regulation, K.A.R. 1-7-4, would have required Bruce to serve a probationary period upon returning to his former rank of major.  

In a decision written by Justice K.J. Wall, the Court held that K.S.A. 74-2113 defines the rank of major as within the classified service. The Court also held that if Kansas Highway Patrol employees attain permanent status in the classified service before being appointed to superintendent or assistant superintendent, then K.A.R. 1-7-4 does not require them to serve another probationary period after returning to their former rank and classification under K.S.A. 74-2113. Chief Justice Marla Luckert concurred in the result.

Case No. 124,867: In the Matter of Joseph R. Borich III

Case No. 124,867 archived oral argument

Borich, an attorney residing in Leawood, Kansas, represented a couple in prosecuting claims against their homebuilder for alleged defects in the construction of their new house. Litigation, including mediation, arbitration, actions in both federal and state district court, and attempted appeals to the Kansas Court of Appeals, went on for over a decade, and the defendant eventually prevailed in all forums. Following a complaint to the Disciplinary Administrator, a disciplinary hearing panel found, among other violations, that Borich failed to represent the plaintiffs competently, charged the plaintiffs unreasonable fees, failed to account for how the fees were generated, and engaged in dishonest communications with his clients. The panel recommended suspension for 90 days and reimbursement to his clients of $21,900 in attorney fees. Borich filed no exceptions to the panel’s report.

The Supreme Court disagreed with the hearing panel’s recommended discipline and imposed a one-year suspension from the practice of law. The Court also ordered Borich to refund $47,000 in attorney fees to his clients. The Court provided for a stay on the suspension if Borich repays the fees within 90 days of the suspension.

Appeal No. 121,014: State of Kansas v. Daniel Earl Genson III

Appeal No. 121,014 archived oral argument

A Kansas Supreme Court majority affirmed decisions from a Court of Appeals majority and the Riley District Court, after Genson appealed his conviction for violating the Kansas Offender Registration Act by failing to register. On the sole issue the Supreme Court granted for review, Genson argued that K.S.A. 2020 Supp. 21-5203(e) unconstitutionally impaired his substantive due process rights by making his failure to register under the Kansas Offender Registration Act a strict liability felony. Nestled within the same issue, Genson also challenged the Court of Appeals majority refusal to consider two newly raised claims under the Kansas Constitution Bill of Rights. The Supreme Court majority found the Court of Appeals majority did not abuse its discretion in refusing to consider these newly raised claims. The Supreme Court majority also concluded that the Legislature's criminalization of failure to register under the Kansas Offender Registration Act on a strict liability basis satisfied the rational basis test and was, therefore, constitutional.

Appeal No. 121,269: State of Kansas v. Thomas Earl Brown Jr.

Appeal No. 121,269 archived oral argument

A jury convicted Brown of first-degree murder and other crimes arising from the shooting death of Tiffany Davenport-Ray hours after her marriage. The Court rejected Brown’s argument that the Shawnee County District Court committed reversible error by admitting maps created by a police detective showing cell towers and locations of cell phones associated with Brown and a coconspirator on the night of the murder. The maps were cumulative of other evidence not challenged on appeal. The Court agreed with Brown that the prosecutor erred during closing argument by making statements that exceeded the wide latitude afforded prosecutors. But the Court ultimately concluded any errors were individually and cumulatively harmless. The State met its burden of establishing beyond a reasonable doubt that evidentiary and prosecutorial errors did not affect the jury's verdict. The Court affirmed the convictions in a unanimous decision written by Chief Justice Marla Luckert.

Appeal No. 122,128: State of Kansas v. Carlos R. Bates

Appeal No. 122,128 archived oral argument

In a unanimous decision written by Chief Justice Marla Luckert, the Supreme Court affirmed the Sedgwick County District Court's denial of a defendant's motion to suppress evidence. Police had responded to a report of suspicious activity in a neighborhood late at night and found the defendant sitting in his van in a darkened alley. Officers searched the vehicle after smelling marijuana and arrested the defendant. The defendant filed a motion to suppress, arguing that the initial seizure of his vehicle was unlawful because officers did not have reasonable suspicion of criminal activity. The Court held that the totality of circumstances in this case supported a finding of reasonable suspicion necessary to justify the investigative stop by officers as required under the Fourth Amendment to the United States Constitution and affirmed the district court's denial of Bates's motion to suppress evidence of the search.

Appeal No. 122,268: State of Kansas v. Dexter Betts

Appeal No. 122,268 archived oral argument

The Supreme Court reversed the Sedgwick County District Court's grant of statutory immunity and remanded the case to the district court for further proceedings. While securing the interior of a family home during a domestic violence investigation, Betts, a Wichita police officer, fired two gunshots in quick succession at a fast-approaching dog he thought was attacking him. He missed, and bullet fragments struck a young girl sitting nearby. The State charged Betts with reckless aggravated battery for injuring the girl. Betts moved to dismiss the charge before trial. He argued state law immunizes his use of deadly force in self-defense, even if he acted recklessly and regardless of who got hurt. The district court agreed with him and dismissed the case. The Court of Appeals affirmed.

In a unanimous decision written by Justice Dan Biles, the Court reversed the lower courts' decisions. In doing so, the Court recognized Betts' case presented facts that it has not considered before. The Court noted that in the typical self-defense immunity case, the State charges a defendant with an intentional crime committed against a person claimed to be the aggressor. But here, the crime charged involved an innocent bystander, the little girl, who was unintentionally injured during Betts' allegedly reckless conduct while engaging in self-defense.

Relying on the plain language of the immunity statute, K.S.A. 2021 Supp. 21-5231(a), and the self-defense statute, K.S.A. 2021 Supp. 21-5222, the Court held the statutory grant of immunity is confined to the use of force, or deadly force, against a person or thing reasonably believed to be an aggressor. The Court, therefore, concluded our immunity statute does not extend its immunity to a defendant's reckless act while engaging in self-defense that results in unintended injury to an innocent bystander.

Appeal No. 124,047: State of Kansas v. Jeffrey Scott Collier

Summary calendar; no oral argument

The Supreme Court affirmed Collier's hard-15 life sentence with lifetime parole for his first-degree murder conviction and a consecutive 97-month prison term for an aggravated robbery conviction. In a majority opinion written by Justice Dan Biles, the Court rejected Collier's claim that the applicable law required 24 months of postrelease supervision instead of lifetime parole, because the aggravated robbery should have been designated as the primary crime for sentencing purposes. In so doing, the Court interpreted the controlling statute, K.S.A. 1993 Supp. 21-4720(b), and determined that under subsection (b)(1), Collier's primary crime is first-degree murder, and under subsection (b)(2), his first-degree murder conviction can be used when deciding the postrelease supervision term—but not the base sentence. The Court concluded the Sedgwick County District Court correctly sentenced Collier under the language of K.S.A. 1993 Supp. 21-4720(b).

Justice Rosen dissented by interpreting the controlling statute differently from the majority. He claims Collier's murder conviction cannot be used for deciding the postrelease supervision term, and therefore the robbery conviction should have been used for that purpose

Case No. 124,958: In the Matter of David S. Whinery

Case No. 124,958 archived oral argument

The Supreme Court, per curiam, found that Whinery violated Kansas Rules of Professional Conduct 1.2, 1.3, 8.4(d), and 8.4(g). The Court found Whinery failed to appropriately define the scope of his representation and failed to diligently give notice to appropriate parties that he had been granted power of attorney for one of his clients, revoking the previous power of attorney arrangement with a third party. A majority of the Court also held that Whinery's use of profanity and physical aggression against his client while in the jury box constituted conduct prejudicial to the administration of justice and adversely reflected on the lawyer's fitness to practice law. The Court accepted the summary submission agreement under Rule 223 and imposed a one-year suspension from the practice of law, though the Court stayed that suspension and placed Whinery on probation for 18 months.