77 J. Kan. Bar Ass'n 8, (2008). A New Guiding Principle: The Kansas Supreme Court's Trend to Review and Reconsider Legal Precedent.

AuthorBy Ryan Farley and Nicole Romine

Kansas Bar Journal

Volume 77.

77 J. Kan. Bar Ass'n 8, (2008).

A New Guiding Principle: The Kansas Supreme Court's Trend to Review and Reconsider Legal Precedent

Kansas Bar Journal Volume 77, Sept. 2008 77 J. Kan. Bar Ass'n 8, (2008) A New Guiding Principle: The Kansas Supreme Court's Trend to Review and Reconsider Legal Precedent By Ryan Farley and Nicole Romine I. Introduction

The foundation of our legal system depends, in part, on the jurisdiction's highest court to enforce precedent. A supreme court's enforcement of precedent establishes controlling law for lower courts and provides consistency in the law. However, no court blindly adheres to past case law.(fn1) Although stare decisis is the "preferred course" in constitutional adjudication, "when governing decisions are unworkable or are badly reasoned, '[even the U.S. Supreme Court] has never felt constrained to follow precedent.'"(fn2)

Like the U.S. Supreme Court, the Kansas Supreme Court has been willing to examine precedent and overturn existing case law.(fn 3) While the Court does not reverse cases with reckless abandon, its recent willingness to review existing law provides litigants with valuable opportunities to challenge controversial or questionable case law. However, as this article attempts to demonstrate through several case summaries, the Court is only willing to break with tradition when the foundations of precedent indicate poor construction, analytical errors, or when the existing rule is confusing and unworkable.

This article will specifically summarize the Court's recent changes in the following areas of law: double jeopardy, jury instructions, Fourth Amendment, evidence, and workers' compensation.

II. Double Jeopardy and Multiplicity

In State v. Schoonover,(fn4) the Court provided a new framework for analyzing double jeopardy issues when a defendant alleges that his or her convictions were multiplicitous. This new framework consists of two parts. A court must consider whether the convictions are based upon the same conduct. If not, the multiplicity analysis ends.(fn5) If the convictions are based on the same conduct, the court must then consider whether the convictions are based upon a single statute or multiple statutes.(fn6) If the convictions are based upon different statutes, the convictions are multiplicitous only when the statutes upon which the convictions are based contain identical elements.(fn7) In adopting this new framework, the Court disposed of the single act of violence/merger doctrine that it had previously outlined.(fn8)

In Schoonover, the defendant was convicted of numerous drug offenses.(fn9) On appeal, the defendant argued that many of his drug offenses were multiplicitous, violating the federal and state constitutions' protections against double jeopardy.(fn10) In addressing the defendant's multiplicity claim, the Schoonover Court summarized the federal analysis of the Fifth Amendment's Double Jeopardy Clause of the U.S. Constitution, explaining that the case before it raised the issue of whether the defendant was punished multiple times for the same offense:(fn11)

Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the [U.S.] Constitution and section 10 of the Kansas Constitution Bill of Rights. [citation omitted.](fn12)

In Schoonover,the Court first recognized that its decisions in State v. Patten(fn13) and State v. Groves(fn14) confused lower courts in the proper application of its double jeopardy and multiplicity analyses.(fn15) In Patten, the Court applied the same-elements test, which required a court to strictly look at the elements of the multiplicitous crimes.(fn16) Patten, however, did not address whether the "single act of violence/merger doctrine" the Court had previously used to analyze multiplicity issues was still good law.(fn17) Under the single act of violence/merger doctrine, a defendant could not be convicted of multiple crimes that arose from a single wrongful act.(fn18) In Groves, the Court applied the single act of violence/merger doctrine to determine that the defendant's convictions for aggravated robbery and aggravated battery were multiplicitous because they arose from one single act of violence.(fn19) After considering Patten and Groves, the Schoonover Court recognized that the single act of violence/merger test provided broader protection than the same-elements test. The Court then examined early common law and prior case law to determine whether there was a constitutional basis for this broader protection.(fn20)

After its lengthy examination, the Court held that the single act of violence/merger doctrine would no longer be applied in Kansas to analyze multiplicity issues.(fn21) The Court specifically disapproved of "any language in previous cases, which utilized a single act of violence/merger rationale as the basis for holding that two convictions, which were based upon different statutes were multiplicitous. ..."(fn22) The Court justified its dramatic change by explaining that the single act of violence/merger doctrine was a corruption of prior case law that had not been consistently applied.(fn23)

The Schoonover Court then clearly explained its new position on multiplicity law:

When a defendant is convicted of violations of multiple statutes arising from the same course of conduct, the test to determine whether the convictions violate § 10 of the Kansas Constitution Bill of Rights is the same-elements test: Whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous and do not constitute a double jeopardy violation.(fn24)

To determine whether two convictions are multiplicitous and thus violate double jeopardy, the Schoonover Court noted, "the overarching inquiry is whether the convictions are for the same offense."(fn25) Specifically, the Court instructed that "[t]here are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition, are there two offenses or only one?"(fn26)

The Court further clarified the law by listing four nonexclusive factors to be considered under the first inquiry when determining whether convictions arise out of the same conduct. These factors include (1) whether the acts occurred at or near the same time, (2) whether the acts occurred at the same location, (3) whether there was a casual relationship between the acts, and (4) whether there was a fresh impulse that motivated the later criminal conduct.(fn27)

The Court also explained that under the second inquiry, courts must determine whether the convictions arise from a single statute or from multiple statutes. If the double jeopardy issue arises from convictions for multiple violations of a single statute, the Court stated that the unit of prosecution test must be applied. Under the unit of prosecution test, the inquiry is whether the Legislature intended to allow more than one unit of prosecution for the same offense. If the double jeopardy issue arises from multiple convictions of different statutes, then the same-elements test must be applied.(fn28) The Schoonover Court then applied the newly clarified double jeopardy framework to determine that the defendant's convictions were not multiplicitous.(fn29)

In Schoonover, the Court dramatically clarified Kansas' court's analysis of multiplicity issues under the double jeopardy clause. As evidenced by the Court's lengthy analysis and summary of prior precedent, it had a strong desire to not only simplify the law regarding multiplicity issues but also to ensure that such case law was consistently applied. The Court's desire for clarification and consistency in the law is a theme that occurred in many of the Court's subsequent cases in which it dramatically departed from precedent.

III. Jury Instructions and Unanimity

The Court has not simply set out to rectify inadvertent mistakes but has also been willing to discard unwieldy or confusing legal standards when it becomes apparent that the standard is no longer workable. For example, in State v. Voyles,(fn30) the Court abandoned its prior framework for addressing allegations that a defendant's right to a unanimous verdict had been violated in a multiple acts case.(fn31)

In Voyles, the defendant was convicted of four counts each of aggravated criminal sodomy and aggravated indecent solicitation of a child over the course of three months. The victims were the defendant's 9-year-old daughter and 10-year-old stepdaughter.(fn32) The girls testified to approximately five different occasions when the defendant ordered them to perform oral sex on him, which resulted in 20 possible criminal acts.(fn33) Although a large number of criminal acts potentially occurred over a long period of time, the state charged the defendant with less than half of the acts.(fn34) This factual situation led to the defendant's argument that it was possible that he was convicted by less than a unanimous verdict.

The defendant claimed the state presented the jury with multiple criminal acts upon which the jury could have relied on in convicting him. He argued that his...

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