Summary Calendar • No Oral Argument
Appeal No. 113,762: State of Kansas v. Robert L. Braun
Ellis County: (Petition for Review) Braun was convicted of driving under the influence. Braun filed a motion to suppress the blood test result, alleging his constitutional rights were violated when officers obtained a blood sample from him without a warrant because Braun’s consent was not voluntary nor free from coercion. The district court denied Braun’s motion. The Court of Appeals held because Braun’s consent was obtained after reading an advisory that incorrectly informed him he could face criminal penalties for refusing to undergo further testing, the results must be suppressed under Ryce and Nece. However, the Court of Appeals held the error was harmless because Braun was charged with an alternative count of being under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle and there was sufficient evidence to convict him of the alternative charge. Issues on review are whether: 1) the good-faith exception to unlawfully obtained evidence applies to the Supreme Court’s decisions in Ryce and Nece; and 2) the Court of Appeals violated Braun’s constitutional right to be proven guilty beyond a reasonable doubt by a trier of fact when it upheld Braun’s conviction by finding he could have been convicted of an alternative count for which he was not convicted.
Appeal No. 114,413: City of Kingman v. Ronald S. Ary
Kingman County: (Petition for Review) Ary appeals his conviction of driving under the influence. Ary claims the arresting officer violated his Fourth Amendment rights by subjecting him to a warrantless blood test pursuant to the Kansas Implied Consent Law. The Court of Appeals agreed but also agreed with the City of Kingman’s argument the results of Ary’s blood test are admissible in this instance under the good-faith exception to the exclusionary rule. The Court of Appeals affirmed. Issues on review are whether: 1) the good-faith exception to unlawfully obtained evidence applies to the Supreme Court’s decisions in Ryce and Nece because the officer was not relying on an unconstitutional statute as authority to conduct the search; and 2) the Legislature abandoned its duty to pass constitutional laws by ignoring the constitutional bases for the Kansas Implied Consent Law.
Appeal No. 115,980: State of Kansas v. Trenton M. Heim
Reno County: (Petition for Review) Heim was arrested for driving under the influence of alcohol in 2015. A sheriff's deputy later read Heim the statutorily required implied consent advisories. Heim refused to take a breath alcohol test but asked to take a blood alcohol test, and a sample was taken as prescribed by statute. With the underlying facts stipulated by the parties, the district court denied Heim’s motion to suppress, which alleged a Fourth Amendment violation based on a warrantless search to which he did not voluntarily consent. The district court convicted Heim of DUI. The Court of Appeals affirmed the district court and held the good-faith exception applies to the deputy’s warrantless collection of evidence. Issues on review are whether: 1) the good-faith exception to unlawfully obtained evidence applies to the Supreme Court’s decisions in Ryce and Nece because the officer was not relying on an unconstitutional statute as authority to conduct the search; 2) the Legislature abandoned its duty to pass constitutional laws by ignoring the constitutional bases for the Kansas Implied Consent Law; and 3) the Legislature criminalized an individual’s ability to withdraw consent rendering K.S.A. 8-1025 facially unconstitutional.
Appeal No. 117,496: State of Kansas v. Brian Joshua Lutz
Shawnee County: (Petition for Review) Topeka police officers observed a driver commit a traffic infraction. The driver was slow to respond to the traffic stop. Backup officers were called in, including a canine unit. While one officer completed writing the warning citation, the other officers began removing the vehicle occupants for a canine search of the vehicle. When an officer opened Lutz’s door, he observed a marijuana grinder in the door pocket. The canine search was called off, the vehicle was searched, and drugs and drug paraphernalia were located. Lutz moved to suppress the evidence, arguing officers unlawfully extended the duration of the traffic stop to initiate the canine search. The district court denied the motion, finding one officer was still working on completing the warning citation while the other officers began the process for the search. As a result, the duration of the traffic stop was not extended when the marijuana grinder was located. The Court of Appeals affirmed. Issues on review are whether: 1) the police officers deviated from the mission of a traffic stop in order to plan and prepare a drug dog search and unreasonably extended the stop in violation of the Fourth Amendment and Section § 15 of the Kansas Constitution Bill of Rights; and 2) the Court of Appeals decision was in conflict with State v. Jimenez, 308 Kan. 315 and Rodriguez v. U.S., 135 S.Ct. 1609.
Appeal No. 118,091: State of Kansas v. Grady A. Kornelson
Reno County: (Petition for Review) Kornelson appeals his convictions for driving under the influence and illegal transportation of liquor. Kornelson argues his retrial following a mistrial violated his double jeopardy rights and the burden of proof instruction used during his second trial was clearly erroneous because it discouraged the jury from exercising its powers of nullification. The Court of Appeals affirmed Kornelson’s convictions, finding when the district court declared a mistrial and the defendant did not object, the manifest necessity standard was not applicable. The Court of Appeals also held the burden of proof jury instruction was not clearly erroneous and the use of the word “should” in the standard instruction for the burden of proof is proper and does not prohibit jury nullification powers. Issues on review are whether the Court of Appeals erred: 1) in failing to apply the manifest necessity standard to Kornelson’s double jeopardy claim; and 2) in finding the district court’s instruction on reasonable doubt did not impermissibly discourage the jury from exercising its power of nullification.
Appeal No. 118,712: Fairfax Portfolio LLC v. Carojoto LLC, Rosana Privitera Biondo, Anthony Privitera II, and Carl Privitera
Wyandotte County: (Petition for Review) Through a succession of assignments from the original lender, Carojoto LLC became the holder of a promissory note, mortgage, and other security documents encumbering commercial real estate in Wyandotte County owned by Fairfax Portfolio LLC. Fairfax was in default, so Carojoto entered the property and took possession, excluding Fairfax. Carojoto later filed an action to foreclose on the property and was granted judgment. In a subsequent suit against Carojoto, Rosana Biondo, Anthony Privitera II, and Carl Privitera, Fairfax claimed occupation of the property by Carojoto before seeking authority from the court was wrongful and caused it damages. Fairfax appealed from the district court's order granting Carojoto's motion to dismiss those claims. The Court of Appeals reversed and remanded, finding the district court must view Fairfax’s petition in the most favorable light along with facts and reasonable inferences that may be drawn from those facts. Issues on review are whether: 1) Carojoto had a right of possession; 2) Fairfax’s agreement to allow Carojoto to have possession upon default violated public policy; and 3) the Court of Appeals erred in failing to enforce the limitation of liability provision of the mortgage.
Appeal No. 119,087: Gary Woessner, deceased, v. Labor Max Staffing and XL Specialty Insurance Co.
(Workers Compensation) Woessner was injured when he fell off a catwalk at his jobsite. He was taken unconscious to an emergency room. Urine was taken from him by a catheter, and a toxicology screen revealed the presence of marijuana. Woessner appears to never have regained consciousness and died a few months later. Woessner’s widow sued Labor Max Staffing and XL Specialty Insurance Co., seeking death benefits under the Kansas Workers Compensation Act. After the suit was filed, the respondents sent the preserved urine sample to LabCorp for additional testing, which also revealed the presence of marijuana. The administrative law judge found the evidence established the presumption Woessner was impaired at the time of the injury and the claimant failed to rebut that presumption. The judge concluded the respondents did not owe any further payments to the claimant. The claimant appealed to the Workers Compensation Appeals Board. The board held the results of LabCorp’s test were not admissible. The respondents appealed to the Court of Appeals. A majority of the Court of Appeals panel held the board abused its discretion by finding the LabCorp evidence was inadmissible. The majority reversed and remanded to the board for further proceedings. The dissent opinion argued the majority erred in its interpretation and application of K.A.R 51-3-5a. Issues on review are whether the Court of Appeals erred: 1) in holding K.A.R. 51-3-5a did not prevent the admission of unfounded medical evidence in a regular hearing; 2) in finding the appeals board abused its discretion in denying admission of the lab-test results; and 3) in holding there was no clear and convincing evidence the claimant rebutted the presumption of impairment.
Appeal No. 119,228: In the Matter of Tax Equalization of Target Corp., Board of County Commissioners of Johnson County v. Target Inc.
(Board of Tax Appeals) This taxation case stems from the ad valorem valuations of three Target stores in Johnson County for the 2016 tax year. The taxpayer brought the issue before the Board of Tax Appeals. After a hearing, the Board of Tax Appeals issued a summary decision significantly reducing the valuation of the properties at issue. In February 2018, the taxpayer filed a request for the Board of Tax Appeals to issue a full and complete opinion. In March 2018, the taxpayer withdrew, via email, its prior request for a full and complete opinion. The county objected to the taxpayer’s withdrawal and requested an issuance of a full and complete opinion and, alternatively, reconsideration of the summary decision. The Board of Tax Appeals rejected the county’s objection and denied the motion for reconsideration. The Board of Tax Appeals did not officially grant the taxpayer’s withdrawal of the prior request, but it did not issue a full and complete opinion. The county appealed and the Court of Appeals involuntarily dismissed on the basis it lacked jurisdiction to hear the appeal because the Board of Tax Appeals’ order is final only after the issuance of a full and complete opinion. Issue on review is whether the Court of Appeals erred in determining it lacked jurisdiction because a full and complete opinion had not been entered by the Board of Tax Appeals.
Appeal No. 119,315: State of Kansas v. Brent J. Carter
Sedgwick County: (Criminal Appeal) After a gang-related shooting resulted in the deaths of Betty Holloman and Brenton Oliver, a jury convicted Carter of two counts of first-degree murder, two counts of criminal discharge of a firearm, one count of aggravated battery, and one count of criminal threat. The trial court sentenced Carter to consecutive terms of 25 years to life in prison. Issues on appeal are whether the district court erred: 1) by failing to provide the jury with a requested instruction on aiding and abetting and distinguishing mere presence and association; and 2) by granting the State’s motion to consolidate the aggravated battery and criminal threat complaint with the felony murder charges for purposes of trial.
Appeal No. 119,745: In the Matter of P.R., a minor child
Shawnee County: (Petition for Review) T.R., the natural mother of P.R., seeks review of the Court of Appeal’s decision to affirm the district court’s termination of T.R.’s parental rights and placement of P.R. with his foster parents for adoption. T.R. raises multiple issues, most of which deal with her argument the Kansas Department for Children and Families was required to sign her voluntary relinquishment of rights in order for the relinquishment to be effective. Issues on review are whether: 1) the Department for Children and Families was required to sign the natural mother’s voluntary relinquishment of rights under K.S.A. 38-2268(b)(1); 2) the natural mother’s voluntary relinquishment of rights was knowingly made; 3) the natural mother’s due process rights were violated because the Department for Children and Families was required to sign the relinquishment; 4) the district court strictly construed K.S.A. 38-2268; 5) the district court entertained the adopted parents’ motion to rescind the Department for Children and Families’ authority after dismissing the natural mother and her attorney from a hearing; 6) the Department for Children and Families could take away the natural mother’s authority to consent; and 7) the district court proceeded with the adoption under K.S.A. 38-2270 when the mother’s parental rights had not been properly terminated.
Appeal No. 119,993: State of Kansas v. Andrew Lynn Gibson
Riley County: (Criminal Appeal) Gibson was charged with the first-degree murder of his ex-girlfriend’s four-month-old son, SNR. It was the State’s theory Gibson was trying to play video games and became annoyed and angry when SNR would not stop crying, so he shoved the child's face into a couch. The first trial ended in a mistrial. A second jury convicted Gibson of first-degree murder and abuse of a child. The district court sentenced him to a hard-25 life sentence and also imposed lifetime postrelease supervision. Issues on appeal are whether: 1) the State presented sufficient evidence to sustain Gibson’s convictions for felony murder and abuse of a child; 2) the district court committed reversible error in allowing the State to elicit testimony from the expert witness concerning matters discussed with Gibson that were not disclosed in his report; 3) the district court erred when it instructed the jury on the burden of proof by failing to instruct the jury it had the discretion to acquit Gibson; 4) cumulative error denied Gibson a fair trial; and 5) the district court erred in imposing lifetime postrelease supervision rather than lifetime parole.
Appeal No. 120,046: State of Kansas v. Shelbie Ellis
Lyon County: (Petition for Review) In January 2018, police were called to conduct a welfare check on Ellis, who had been in the bathroom of a convenience station for 45 minutes. After she opened the door, officers requested her driver’s license and sent the number to the dispatcher. Before returning the license, the officer began questioning her about her travel plans. The officer noticed Ellis’ hands were shaking, but she denied using drugs. Ellis did not consent to any search. The dispatcher returned information Ellis had a potential outstanding warrant in Rice County. The officer arrested Ellis, and she told the officer she had methamphetamine in her purse. When the dispatcher confirmed the warrant, officers found methamphetamine and a pipe in her purse. The district court denied Ellis’ motion to suppress the drug evidence and rejected her argument the search exceeded the scope of the welfare check by retaining her driver's license and checking for warrants after concluding she was not in need of assistance. The district court stated the interaction was not improper, Ellis had voluntarily given her license, and the officer was free to conduct a records check. However, the court applied the attenuation doctrine and held the discovery of the warrant justified the arrest and search. Ellis appealed. The Court of Appeals agreed with Ellis, determining there was a violation of Ellis’ state and federal constitutional rights and found the district court erred in denying the motion to suppress. Issues on appeal are whether: 1) the Court of Appeals erred in overturning the district court’s denial of Ellis’ motion to suppress; 2) conducting a computer check through dispatch equates to a detention if that act does not detain an individual or prolong the encounter; and 3) the attenuation doctrine applies to welfare checks.
Appeal No. 120,390: State of Kansas v. David Patrick McNabb
Linn County: (Criminal Appeal) McNabb pleaded no contest to two counts of first-degree murder and one count each of theft and interference with law enforcement. McNabb admitted to killing his uncle and grandmother and then burying their bodies in rural Pittsburg. McNabb moved for a downward departure to a hard-25 life sentence based on his lack of prior felony convictions, his age and immaturity, and the wishes of the victim’s family. The district court denied McNabb’s motion for departure and sentenced him to two consecutive terms of life imprisonment without the possibility of parole for 50 years for the murder charges and concurrent terms on the other convictions. Issue on appeal is whether the district court abused its discretion in finding a lack of substantial and compelling reasons to order a downward departure.
Appeal No. 120,414: State of Kansas v. Cortez Tyrell Timley
Shawnee County: (Criminal Appeal) Timley was convicted of the drive-by shooting of Jermel Robbins in southeast Topeka. Cell phone tower mapping was used to place the car Timley was riding in at the scene of the crime. A jury convicted Timley of first-degree murder. He was sentenced to a hard-25 life sentence. Issues on appeal are whether: 1) the State committed prosecutorial error by misstating the evidence and arguing for a conviction based on unreliable evidence admitted at trial; 2) the district court erred in allowing a detective to testify as to the cell towers used and then admitting multiple exhibits mapping the cell towers that were accessed by the cell phone linked to Timley; 3) the district court erred in failing to instruct the jury on the lesser crime of second-degree murder; 4) the district court violated Timley’s due process rights by failing to instruct on any lesser included offenses; and 5) cumulative error denied Timley a fair trial.