Appellate Decisions
| Publication year | 2017 |
| Pages | 53 |
| Citation | Vol. 86 No. 9 Pg. 53 |
APPELLATE DECISIONS
All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KB A members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts' website at www.kscourts.org
SUPREME COURT
ATTORNEY DISCIPLINE ORDER OF DISBARMENT IN THE MATTER OF DAVID R. ALIG NO. 17,358— AUGUST 25, 2017
FACTS: In a letter signed August 21, 2017, David R. Alig voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a disciplinary complaint was pending against Alig.
HELD: The court accepted the surrender and Alig was disbarred.
ORDER OF DISBARMENT IN THE MATTER OF ELDON L. BOISSEAU NO. 8,022—SEPTEMBER 13, 2017
FACTS: In a letter dated August 31, 2017, Eldon L. Boisseau, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. A complaint was pending at the time of surrender; the complaint alleged that Boisseau violated Kansas Rules of Professional Conduct by having been convicted of attempting to evade or defeat tax.
HELD: The court found that the surrender should be accepted and that Boisseau should be disbarred.
ORDER OF DISBARMENT IN THE MATTER OF DANIEL L. BALDWIN NO. 16,283—AUGUST 16, 2017
FACTS: In a letter signed August 16, 2017, Daniel L. Baldwin, attorney licensed to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time Baldwin surrendered his license a formal hearing was pending regarding two docketed disciplinary complaints. The complaints involved issues of competence, diligence, safekeeping property, and fees.
HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Baldwin's license should be accepted and that he should be disbarred.
ORDER OF DISBARMENT IN THE MATTER OF BILL HAROLD RAYMOND NO. 15,504—AUGUST 25, 2017
FACTS: In a letter signed August 21, 2017, Bill Harold Raymond, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, a disciplinary complaint was pending which alleged violations of the KRPC.
HELD: The court found that the surrender of Raymond's license should be accepted and Raymond was disbarred.
CIVIL
DUTY—NEGLIGENCE—TORTS RUSSELL V. MAY SEDGWICK DISTRICT COURT— COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART— DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART—CASE REMANDED NO. 111,671— AUGUST 25, 2017
FACTS: Russell discovered a lump in her breast in 2008. Dr. Goering, her primary care physician, sent Russell for diagnostic imaging. The physicians who viewed the images felt that the mass was benign and sent Russell back to Dr. Goering. Russell's obstetrician recommended that Russell have a biopsy to put her mind at ease, but Russell did not follow up. A few years later there were signs that the lump was growing, so Russell again called Dr. Goering, who ordered diagnostic testing. At that time a biopsy was performed and cancer was discovered. Russell filed suit against Dr. Goering plus two other physicians who provided care. The district court granted Dr. Goering's motion for judgment as a matter of law but denied the motion as to the other two doctors. A jury found that neither of those doctors was at fault. The Court of Appeals affirmed the district court's grant of the motion for judgment as a matter of law and the Supreme Court granted a petition for review.
ISSUES: (1) Grant of motion for judgment as a matter of law; (2) admission of expert testimony
HELD: Russell presented sufficient evidence to show that Dr. Goering owed a duty to meet the standard of care. Russell and Dr. Goering had a physician-patient relationship. And there was sufficient evidence presented to show that Dr. Goering breached the appropriate standard of care and that a reasonable jury could conclude that this breach was a proximate cause of Russell's delayed diagnosis. There is no evidence that the district court's grant of the motion for judgment as a matter of law was harmless. The disputed answers given by the expert were ambiguous and there is no reasonable probability that the assumed error affected the verdict against Dr. May.
STATUTES: K.S.A. 60-250(a), -260(a), -261; K.S.A. 60-404
CRIMINAL
APPEALS—CONSTITUTIONAL LAW— CRIMINAL PROCEDURE—EVIDENCE— JURY INSTRUCTIONS—STATUTES STATE V. BROWN SEDGWICK DISTRICT COURT—AFFIRMED NO. 11,2782—SEPTEMBER 15, 2017
FACTS: In a consolidated trial, Brown was convicted of offenses including felony murders of Tampone and Rhone, each with an underlying felony of aggravated robbery. On appeal, he claimed his statements to the police should have been suppressed because detective misinformed him of Miranda right to counsel. He next claimed insufficient evidence supported his conviction for felony murders. Third, he claimed reversible errors in district court's instructions to the jury, citing: a narrowed instruction for felony murder as not matching the information; an attempted aggravated robbery instruction that broadened the crime charged; an instruction defining "intent to aid and abet attempted aggravated robbery" as unconstitutionally vague; and an instruction defining "reckless" criminal discharge of a firearm as being irrational.
ISSUES: (1) Miranda warnings, (2) sufficiency of the evidence, (3) jury instructions
HELD: Pursuant to Duckworth v. Eagan, 492 U.S. 195 (1989), and under facts in this case, the detective informing Brown that an attorney would be appointed for him "if he was charged" did not render the Miranda warnings constitutionally inadequate because in their totality, the warnings reasonably conveyed to Brown his rights as required by Miranda. Brown's claim for first time on appeal that his interrogation was tainted by unnecessary delay between his arrest and his first appearance, is not considered.
Jury heard sufficient evidence to reasonably conclude that Brown knowingly took a cell phone and Cadillac from the presence of Tam-pone by using lethal force, and that Brown's associates orchestrated the robbery and fired the shots killing Rhone with Brown's help as the wheelman.
The jury instructions were not clearly erroneous. Pursuant to State v. Brown, 299 Kan. 1021 (2014), overruled on other grounds by State v. Dunn, 304 Kan. (2016), district court's narrowing of the instructions for felony murder was legally and factually appropriate. If discrepancy in the attempted aggravated robbery instruction was even error, it was not reversible error. Brown invited any error in the instruction defining "intent." And the instruction defining "reckless" comported with statutory definition of that term and the corresponding pattern instruction.
STATUTES: K.S.A. 2016 Supp. 21-5301(a); K.S.A. 2012 Supp. 21-5202(h), -5210(a), -5420, -5420(a)(2), -5420(b), -5420(c)(1) (D), -5420(i), 22-3414(3); K.S.A. 22-2901, -3203, -3601(b)(3)
CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—SENTENCES—STATUTES STATE V. SHAYLOR RENO DISTRICT COURT—AFFIRMED ON ISSUES SUBJECT TO REVIEW COURT OF APPEALS—AFFIRMED ON ISSUES SUBJECT TO REVIEW NO. 108,103—AUGUST 18, 2017
FACTS: Shaylor was convicted of manufacturing methamphetamine. Kansas Offender Registration Act (KORA) was subsequently amended to define an "offender" required to register as including Shaylor's offense unless a court found the manufacturing of the controlled substance was for personal use. Shaylor was then convicted of failing to register as a drug offender. On appeal, she claimed the retroactive application of the KORA amendment violated the Ex Post Facto Clause, and also claimed for first time on appeal the district court's finding as to whether Shaylor possessed drug precursors for personal use violated Apprendi. In an unpublished opinion, Court of Appeals affirmed on these issues. Review granted.
ISSUE: Kansas Offender Registration Act - ex post facto and apprendi
HELD: As set forth in State v. Meredith, 306 Kan.__(2017), non-sex offenders seeking to avoid retroactive application of KORA provisions...
To continue reading
Request your trial