Kansas Caselaw Update
Description of Caselaw Update
The Caselaw Update summarizes recently published Kansas cases on criminal law. The present Update includes cases decided during the previous month. A case is summarized if it develops a new principle of law or applies an established principle to a novel set of facts. The complete text of published opinions can be located at http://www.kscourts.org/kscases/. It should be noted that, under Supreme Court Rule 8.03(i), if a petition for review is filed from a Court of Appeals opinion, the opinion cannot be cited as precedent until the petition for review is denied and the mandate has been issued.
I. Search of Purse Passenger Was Ordered to Leave in Car Unconstitutional
II. Warrantless Search of Licensed Drinking Establishment
III. Dismissal Based on Delay in Serving Arrest Warrant
IV. Guilty Plea Set Aside Where Court Misstated Possible Maximum Sentence
V. Mere Passage Through a School Zone in an Automobile Does Not Establish Possession Within 1000 Feet of a School
VI. Sufficiency of the Evidence: Obstructing Legal Process
VII. Manufacture of Methamphetamine Constitutes a Felony
VIII. Criminal History
IX. Probation Revocation Following Graduation From Labette Improper
X. Requirement for Convicted Felon to Submit Blood and Saliva Samples Not a Penalty
I. Jury instruction aggravated battery
II. Jury instruction jury unanimity
III. Appellate procedure adequacy of findings and conclusions in K.S.A. 60-1507 hearing
IV. Reception of evidence res gestae, admission of prior bad acts independent of K.S.A. 60-455
I. Reversal Based on Exclusion of Evidence of Third Party Guilt
II. Suppression Upheld Where Based on Deliberate Omissions From Affidavit
III. Suppression Reversed Where Evidence Seized From a Car Parked In Front of Residence Upon Which a Search Warrant Was Being Executed
IV. Evidence of Specific Instances of Conduct to Establish Good Character Inadmissible
V. Enzyme Analysis Technique Meets Frye Test for Admissibility
VI. Aggravated Kidnapping Conviction Reversed Due to Acquittal on Rape Charge
VII. Multiple Acts Instruction
VIII. Upward Duration Departure Unconstitutional Even if Imposed Pursuant to Plea Agreement
IX. Increase in Post-Release Supervision Based on Guilty Plea to Statutorily Defined "Sexually Violent" Crime Upheld
X. Restitution
XI. Sufficiency of Findings in Denial of K.S.A. 60-1507 Petition
I. DUI cases--sentencing jurisdiction to modify sentence
II. Constitutional challenges Offender Registration Act
III. DUI cases elements of offense IV. Elements of offenses vehicular homicide
V. Constitutional challenges failure to display evidence of insurance
VI. Discovery independent psychological and physical examination of victim
VII. Constitutional challenge false impersonation
VIII. Sentencing guidelines departure sentences
I. Dismissal Based on Delay Which Violated Due Process
II. Questioning Defendant About Pre-Miranda Silence Does Not Violate Doyle
III. Classification of Fleeing and Eluding Charge Depends on Officer's Reason for Pursuit
IV. Multiple Hearsay
V. Hard 50 Sentencing
VI. Consecutive Sentences Cannot be Imposed Against a Juvenile
I. Evidence gruesome recording; jury instructions voluntary manslaughter/mitigating circumstance; prosecutorial misconduct
II. Sentencing Apprendi application to dispositional findings
III. Felony fleeing or eluding elements of offense
IV. Appellate procedure notice of appeal; diversion agreements
V. Sentencing upward durational departures/Apprendi
VI. Jury instructions residue; multiplicity; sufficiency of evidence obstruction
VII. Search incident to arrest protective sweep; sentencing manufacture
VIII. Jury instruction eyewitness identification; conduct of jury ex parte communications;
prosecutorial misconduct; lesser-included offense voluntary manslaughter; ineffective assistance of trial counsel; speedy trial
IX. Jury instruction response to jury question; prosecutorial misconduct; evidence-K.S.A. 60-455; sentencing persistent sex offender/Apprendi
X. Sentencing community intermediate sanction center
XI. Trial by jury use of stun belt during trial; polling jury regarding exposure to media coverage
XII. Evidence prior bad act evidence; search incident to arrest protective sweep
XIII. Element of offense hunting deer with artificial light
I. Smell of Alcohol on Defendant's Breath, By Itself, Does Not Warrant Traffic Stop
II. Motion to Sever Charges
III. In Camera Review of Rape Victim's Psychological Records
IV. Hearsay Evidence: K.S.A. 60-460(i)(2) Exception
V. K.S.A. 60-455 Evidence
VI. Evidence of Religious Beliefs
VII. Prosecutorial Misconduct
VIII. No Conflict of Interest Where Assistant County Attorney Represents Defendant
IX. Motion for New Trial Based on Newly Discovered Evidence
X. Unanimity Instruction in Multiple Acts Case
XI. Submitting Materiality Element on a Perjury Charge to the Jury
XII. Double Jeopardy Clause Bars Retrial When State Caused Mistrial
XIII. Apprendi Does Not Apply to Upward Dispositional Departure Sentences
XIV. Sentence Enhancement for Persistent Sex Offenders Does Not Violate Apprendi
XV. Guilty Plea Does Not Provide Basis for Increase in Postrelease Supervision
XVI. Late Notice of Appeal
I. Suppression Fifth and Sixth Amendments
II. Suppression, vehicle stops reasonable suspicion/public safety stop
III. Prior bad act evidence, res gestae, late notice of alibi witness, sufficiency of evidence possession of marijuana with
intent to distribute
IV. Suppression search of purse, scope of consent
V. Prior bad act evidence admission independent of K.SA. 60-455, testimony of a social worker regarding disassociation, Doyle violation harmless error, testimony of child by closed circuit television
VI. Compulsory joinder
I. Reversal Based on Judicial Misconduct During Bench Trial
II. Suppression of Witness' Statement
III. Motion to Disqualify District Attorney's Office from Prosecuting Case
IV. Batson Challenges
V. Exclusion of Evidence of Defendantï's Mental State
VI. Viewing Surveillance Videotape in Jury Room
VII. Admission of Gruesome Photographs
VIII. Application of Harmless Error Standard
IX. Prosecutorial Misconduct: Closing Argument
X. Elements of Offense: Sexual Exploitation of a Child
XI. Jury Instructions: Lesser Included Offenses
XII. Intentional Second Degree Murder a Lesser Included Offense of Felony Murder
XIII. Jurisdiction to Extend Probation Term
XIV. Constitutionality of K.S.A. 1999 Supp. 21-4603d(e) Upheld
XV. Credit for Time Served
I. Postconviction release departure
II. Escape from custody–sufficiency of “custody”
III. Probation revocation–timeliness
IV. Sufficiency of complaint attempt & conspiracy, suppression involuntary statements, conflict of interest cross-examining former client, bad character evidence, sentencing disparity
I. Prosecutorial misconduct violation of in limine order; speedy trial local rules
II. Unreasonable delay in sentencing; waiver of appeal
III. Jury trial waiver; appeal of presumptive sentence; failure to record closing argument
IV. Voluntariness of statements in re misrepresentations/religious references; right to counsel after defendant initiates contact; expert testimony inconsistency of inculpatory statements and physical evidence and testimony regarding false confessions; confession instruction
V. Sufficiency criminal threat
VI. Retroactive application of interpretation of felony-murder statute
VII. Making a false information application
VIII. Agreement on Detainers Act
IX. Prosecutorial misconduct
X. Suppression equivocal invocation of right to counsel
XI. Finding that crime is crime of extreme sexual violence is governed by Apprendi
XII. Premeditation instruction; introduction of defendant's testimony from prior trial
XIII. Search incident to arrest; plain feel exception; Miranda
XIV. Missouri suspended sentence as element of criminal possession of firearm
XV. Independent psychological exam of victim; admissibility of expert testimony regarding lack of proclivity in defendant; admission of defense character evidence
XVI. Expungement
XVII. Admission of caller ID evidence; criminal threat/harassment by telephone not multiplicitous
XVIII. Dispositional departures/Apprendi
XIX. Trafficking in contraband statute constitutionality.
XX. Kidnapping/aggravated interference with parental custody/criminal restraint
XXI. Defective complaint kidnapping, attempt, conspiracy
XXII. Sale within 1000' of school property sufficiency
I. Detention of Driver for DUI Outside of Officer's Territorial Jurisdiction
II. Admission of Statement Obtained Through Sixth Amendment Violation Not Error When Statement was Exculpatory
III. Failure to Preserve Evidence
IV. Venue: Criminal Solicitation
V. K.S.A. 60-455 Evidence
VI. Prosecutorial Misconduct: Closing Argument
VII. Ineffective Assistance of Counsel
VIII. No Time Limitation on Filing Motion to Withdraw Plea
IX. Manufacturing or Attempt to Manufacture Methamphetamine
X. Sufficiency of the Evidence: Possession of Ephedrine or Pseudoephedrine
XI. Jury Instructions: Lesser Included Offenses
XII. Jury Instructions: Lesser Included Offenses
XIII. Jury Instructions: Definition of Premeditation
XIV. Jury Instructions: Voluntary Intoxication
XV. Apprendi Not Applicable to Prior Convictions or Juvenile Adjudications
XVI. Apprendi Not Applicable to Determination to Prosecute a Juvenile as an Adult
XVII. Imposition of Consecutive Sentences Does Not Violate Apprendi
XVIII.Sentencing: Possession of Ephedrine or Pseudoephedrine and Possession of Drug Paraphernalia are Identical Offenses
XIX. Sentencing: Felony DUI Conviction
XX. Jurisdiction to Modify Felony DUI Sentence
XXI. Restitution
XXII. Consecutive Sentencing: Juvenile Cases
XXIII.Jail Credit Following Parole Revocation
XXIV. K.S.A. 60-1507: Adequacy of Findings of Fact and Conclusions of Law
XXV. Appellate Jurisdiction
I. First degree murder, aggravated kidnapping: Testimony invading province of jury; sufficiency
II. Involuntary manslaughter, making false information: Prior bad accidents; issuance of driver's license not defense
IV. Probation revocation
V. Rape (incapable of consent because of medical condition): Sufficiency, definition of "incapable to consent
VI. Restitution: Attorney's fees
VII. Search and Seizure: "Any other person present" warrant; good faith exception
I. Vehicle Stop Based on Telephone Tip
II. Suppression Based on Encouraging Drug Dog to Enter Car
III. Disclosure of Identity of "Mere Tipster" Not Required
IV. Batson Challenge
V. Waiver of 12 Person Jury
VI. Hearsay: Adoptive Admissions Exception
VII: Hearsay: State of Mind Exception
VIII. Hearsay: Coconspirator Exception
IX. Evidence of Defendant's Involvement With Wicca Religion Improper
X. Evidence of Specific Instances of Misconduct
XI. Expert Testimony
XII. Cross-Examination by Trial Court
XIII. Waiver of Conflict of Interest by Defense Counsel
XIV. Inadequate Inquiry Into Attorney-Client Conflict
XV. Conduct of the Prosecutor in Closing Argument
XVI. Conduct of the Prosecutor in Cross-Examining the Defendant
XVII. Lesser Included Offense Instructions: Felony Murder
XVIII.Absence of Jury Unanimity Instruction
XIX. Eyewitness Identification Instruction
XX. Manner of Instructing the Jury
XXI: Hard 40 Sentence: Heinous, Atrocious or Cruel Killing
XXII. Motion to Correct Illegal Sentence
XXIII.No Right to Counsel at Hearing to Extend Term of Probation
XXIV. Court of Appeals Ordered to Withdraw Opinion From Publication
I. Warrantless Entry Into Commercial Business
II. Speedy Trial: Interstate Agreement on Detainers
III. Speedy Trial: Juvenile Proceedings
IV. State Courts Have Jurisdiction to Hear Criminal Cases
V. Evidence Admissible Independent of K.S.A. 60-455
VI. Elements of Offense: Criminal Restraint
VII. Elements of Offense: Aggravated Failure to Appear
VIII. Convictions for Aggravated Kidnapping and Rape Found to be Multiplicitous
IX. Increase in Postrelease Supervision Violates Apprendi
X. Sentencing: Persistent Sex Offender
XI. Sentencing: DUI Cases
XII. Probation Revocation Based on Hearsay Evidence
I. Double Jeopardy
II. Drug Convictions Found To Be Multiplicitous
III. Criminal History Not Subject to Plea Agreement
IV. Presumptive Sentences
V. Failure to Consider Labette When Probation Revoked Due to New Felony
VI. Restitution May Include Cost of Audit
VII. Appeal To District Court From Municipal Court Conviction
I. Motion for Separate Trials
II. Motion for Severance of Counts
III. Constitutionality of K.S.A. 38-1636(a)(2)
IV. Police Officer's Comment on Alleged Victim's Truthfulness
V. Statements Offered to Impeach Witness Not Hearsay
VI. False Memory Syndrome
VII. Evidence of Prior Acts of Violence by the Defendant
IX. Limitations on Cross-Examination
X. Juror Misconduct
XI. Constitutionality of Criminal Threat Statute Upheld
XII. Sufficiency of the Evidence: Criminal Threat
XIII. Sufficiency of the Evidence: Aggravated Assault
XIV. Failure to Give Unanimity Instruction in Alternate Acts Case Harmless Error
XV. Hard 40 Sentence Vacated Due to Consideration of Nonstatutory Aggravating Factors
XVI. Dispositional Departure Based on Fact Defendant Absconded Vacated
XVII. Dispositional Departures Not Unconstitutional Under Apprendi and Gould
XVIII.Notice of Intent to Depart
XIX. Payment of Restitution Ordered in Prior Case Cannot be Condition of Probation
XX. Unavailability of Sentence Conversion for Technical Parole Violators Constitutional
XXI. Challenge to Hearsay Evidence Not Preserved in Absence of Continuing Objection
XXII. Waiver of Objection to Witness' Invalid Assertion of Fifth Amendment Privilege
XXIII.Failure to Properly Preserve Objection to Prosecutor's Closing Argument
XXIV. Ineffective Assistance of Appellate Counsel
XXV. Proceedings Following Remand
XXVI. Appeal From Judgment of a District Magistrate Judge
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