Appellate Decisions
| Publication year | 2017 |
| Pages | 77 |
Supreme Court
Attorney Discipline
ORDER OF DISBARMENT IN THE MATTER OF MARGO E. BURS ON NO. 10,805—JULY 19, 2017
FACTS: In a letter signed July 18, 2017, Margo E. Burson voluntarily surrendered her license to practice law in Kansas. At the time the respondent surrendered her license, a complaint was pending with the Office of the Disciplinary Administrator. The complaint alleged violations of various rules of professional conduct relating to competence, communication, and candor toward the tribunal.
HELD: The court examined the files of the Office of the Disciplinary Administrator and found that the surrender of Burson's license should be accepted and that she should be disbarred.
Civil
EVIDENCE—JURIES—TORTS BULLOCK V BNSF RAILWAY COMPANY WYANDOTTE DISTRICT COURT—COURT IS APPEALS IS AFFIRMED—DISTRICT COURT IS REVERSED—CASE REMANDED NO. 111,599—AUGUST 4, 2017
FACTS: While working for BNSF, Bullock slipped and was injured after stepping in diesel fuel. It was later determined that the fuel was spilled by one of Bullock's co-workers. Bullock sued BNSF and BNSF claimed the affirmative defense that Bullock was contributorily negligent for failing to appreciate the danger posed by the diesel fuel. Evidence at trial showed that Bullock was not disciplined for his conduct but that the employee who caused the spill was disciplined. The jury found BNSF 100 percent at fault. After BNSF appealed, the Court of Appeals found that evidence of the other employee's discipline was a subsequent remedial measure barred by K.S.A. 60-451, and that court ordered the matter remanded for a new trial. Bullock's petition for review was granted.
ISSUES: (1) Use of post-accident employee discipline as evidence; (2) counsel's statements during closing argument
HELD: The post-accident discipline of another employee constitutes a subsequent remedial measure and is barred from introduction by K.S.A. 60-451. This is true even if a party attempts to use evidence of subsequent remedial measures to prove causation or defeat a claim of contributory negligence. But evidence of an employer's post-event investigation is admissible under that same statute. A jury should not be instructed to act on their feelings about what is fair or to be concerned with community standards or community conscience. Counsel's remarks during closing argument were inappropriate.
STATUTE: K.S.A. 60-451, 3701(d)(1)
ADMINISTRATIVE—STATUTORY INTERPRETATION MIDWEST CRANE & RIGGING V KANSAS CORPORATION COMMISSION SHAWNEE DISTRICT COURT—COURT OF APPEALS IS REVERSED—DISTRICT COURT IS REVERSED NO. 114,168—JULY 21, 2017
FACTS: Midwest Crane & Rigging (Midwest) is a contractor that provides a crane service. One of Midwest's trucks was stopped by law enforcement; during the stop, the trooper noticed that the truck did not have a license plate. In addition to a violation for failing to display a license plate, the trooper identified a possible issue with Midwest's failure to pay the federal Unified Carrier Registration Act (UCR) fee. The truck had a crane permanently attached to the chassis, and the truck only carried the tools that were necessary to operate the crane. The KCC fined Midwest $300 for failing to register and pay the UCR fee. The fine was upheld after the KCC determined that the truck was a "commercial motor vehicle." The district court affirmed the KCC, as did a majority of the Court of Appeals' panel. The Supreme Court granted review.
ISSUE: Is the crane truck a commercial motor vehicle that is principally used to transport cargo
HELD: In order to qualify as a commercial motor vehicle, the truck in question must be used principally to transport cargo. In this case, the crane and its associated tools are not cargo. Because the crane is not cargo, the truck is not a commercial motor vehicle and Midwest need not pay a fee.
STATUTES: 49 U.S.C. § 14504a(a)(1)(A)(ii), § 31101(1), § 13102(14), § 31132(1), § 14504a(a)(8), § 14504a(a)(9), § 14504(c), § 14504(e); K.S.A. 2016 Supp. 8-128(b), 66-1,115, -1,139a, 77-621(c)(4)
INDIGENTS' DEFENSE—MANDAMUS LANDRUM V. GOERING ORIGINAL ACTION—WRIT OF MANDAMUS GRANTED IN PART NO. 116,447—JULY 21, 2017
FACTS: This original action in mandamus questions whether a partially indigent defendant who has retained counsel may receive funding for certain services through the State Board of Indigents' Defense Services (BIDS). Landrum has privately retained counsel, but he moved to be declared partially indigent. The district court made that declaration and provided Landrum with a copy of the preliminary hearing transcript at a reduced price. The court also approved funding for investigative services. But after the presiding judge changed, all further requests were denied; the new judge ruled that Landrum could access BIDS payments only for expenses associated with his defense through an appointed, not retained, attorney. Landrum filed a petition for writ of mandamus, and BIDS served as the primary respondent.
ISSUE: Whether BIDS is required to fund services for a partially indigent defendant who has privately retained counsel
HELD: The court has jurisdiction to consider this application for mandamus and Landrum has standing. The only attorneys specifically excluded in K.S.A. 22-4508 are public defenders. The statute considers only the financial inability of the defendant to pay for defense services and the necessity of the requested services. Therefore, a district court has a duty to conduct an ex parte hearing when an attorney, other than a public defender, asks the court to consider a defendant's request for services. The writ issued here extends only to the district court's duty to hold a hearing; the court does not dictate the outcome of that hearing, and any orders entered depend on whether Landrum shows that he cannot afford the requested services, and that those services are necessary to his defense.
STATUTE: K.S.A. 22-4503(a), -4503(c), -4503(e), -4504, -4507, -4508, -4509, -4522, -4523, 60-801
Criminal
CRIMINAL LAW AND PROCEDURE—EVIDENCE—PROSECUTORS STATE V BANKS SEDGWICK DISTRICT COURT—AFFIRMED NO. 114,614—JULY 21, 2017
FACTS: Flores was convicted of premeditated first-degree murder. On appeal he claimed: (1) insufficient evidence supported the conviction because state's evidence of premeditation was based upon impermissible inference stacking; (2) prosecutorial error by encouraging jury to decide case based on unreasonable inferences rather than on direct or circumstantial evidence; and (3) district court's exclusion of photographs that depicted handwritten notes found in Flores' car violated Banks' right to present evidence critical to his defense.
ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial error, (3) admission of evidence
HELD: Flores mistakenly equates inference stacking with state's reliance on multiple circumstances. Impermissible inference stacking is not present where different circumstances are used to support separate inferences or where multiple pieces of circumstantial evidence separately support a single inference. Under facts in this case, the state provided sufficient evidence that the killing of the victim was premeditated.
No error was found in prosecutor's closing argument. Prosecutor may have come close to scripting the crime for the jury in more detail than the evidence justified, but the relevant inferences asserted by the prosecutor were supported by the evidence and were reasonable.
District court correctly refused to admit the unauthenticated writings. Banks made no effort to comply with authentication requirements of K.S.A. 60-464; there was no evidence as to whose handwriting appears in the photographed writings; and nothing in the content of the writings gives a clue as to who might have authored them.
STATUTES: K.S.A. 2013 Supp. 21-5402(a)(1); K.S.A. 60-404
CONSTITUTIONAL LAW—CRIMINAL LAW—SEARCH AND SEIZURE—STATUTES STATE V. BANNON SEDGWICK DISTRICT COURT COURT OF APPEALS REVERSED AND REMANDED TO COURT OF APPEALS FOR RECONSIDERATION NO. 112,212—JULY 28, 2017
FACTS: Wichita State University officers were told that Bannon always carried a handgun and had other guns and ammunition in his university apartment. Officers entered the restricted access apartment building, approached Bannon in a common area, and found a concealed handgun in his waistband. Bannon was charged with criminal carry of a firearm, K.S.A. 2012 Supp. 21-6302(a)(4). He filed a motion to dismiss, arguing he could not be convicted for possessing a concealed gun in his abode or within its curtilage. District court denied the motion. Bannon then filed motion to suppress the gun, arguing the warrantless patdown search was presumptively unreasonable, the stop-and-frisk exception under Terry v. Ohio, 392 U.S. 1 (1968), did not apply, and no probable cause supported his arrest. District judge denied the motion, finding in part the patdown was within the scope of Terry because officers had reasonable suspicion that Bannon was carrying a gun, and they were entitled to search to ensure officer safety. Bannon appealed the denial of both motions. Court of Appeals reversed in unpublished opinion. Panel assumed the officers had a reasonable suspicion that
Bannon was violating the law, but Terry's second prong was not met because there was no evidence the officers were actually subjectively concerned for their safety or the safety of others. Panel did not address Bannon's second issue regarding the motion to dismiss. Petition for review granted.
ISSUE: Terry Stop - subjective vs. objective belief of officer
HELD: Terry stops were examined, identifying conflicting federal and state cases regarding whether Terry's second prong is a subjective or an objective test. Court holds the test is objective: whether...
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