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The opinion of the court was delivered by
Beier, J.:
This is an original action in mandamus brought by petitioners Alpha Medical Clinic and Beta Medical Clinic arising out of an inquisition in which respondent Attorney General Phill Kline subpoenaed the entire, unredacted patient files of 90 women and girls who obtained abortions at petitioners’ clinics in 2003. At the time the petition in this action was filed, respondent Shawnee County District Judge Richard Anderson had ordered the files produced to the court for an initial in camera review by an attorney appointed by the judge and a physician or physicians appointed by the attorney general. We stayed that order pending our consideration of the matter.
The parties’ pleadings and briefs raise several issues: (1) Is mandamus an appropriate avenue for relief? (2) To what degree, if any, must the inquisition subpoenas be limited because of the patients’ constitutional right to privacy? (3) To what degree, if any, must the inquisition subpoenas be limited because of the Kansas statutory physician-patient privilege? (4) To what extent, if any, are the petitioners entitled to be further informed regarding the purpose and scope of the inquisition? (5) Should the nondisclosure provisions of the subpoenas be enforced? and (6) Should the attorney general be held in contempt for speaking publicly about matters held under seal in this court?
Factual and Procedural Background
The two subject subpoenas were issued September 21, 2004. Each contained a return date of October 5, 2004, and provided that objections, if any, would be due by September 24, 2004. The subpoenas stated the district court had found there was probable cause “to believe that evidence of a crime or crimes may be located” in the patient files, identified by state record number, provider number, and patient identification number. Further, each subpoena provided: “The existence of this subpoena and any records produced pursuant to such are to remain confidential and not to be disclosed to any other person or entity.”
Petitioners filed a motion to quash the subpoenas and sought additional information about the violations of the law under investigation so they could analyze and argue whether the subpoenas were reasonable or an abuse of process. On October 5,2004, Judge Anderson heard the parties’ arguments on the motion to quash.
At that hearing, Stephen Maxwell of the attorney general’s office characterized the inquisition as “massive in nature.” Potential violations of two specific statutes were mentioned: K.S.A. 65-6703, which deals with abortions performed at or after 22 weeks’ gestational age, and K.S.A. 2004 Supp. 38-1522, which governs mandatory reporting of suspected child abuse.
Petitioners, for their part, argued that the attorney general is a vocal opponent of abortion rights and interprets the K.S.A. 65-6703 exception to prohibition of abortions at 22 weeks’ gestational age or later to be limited to consideration of the physical health of the pregnant woman, rather than including consideration of her mental health. Petitioners asserted that this interpretation conflicts with United States Supreme Court precedent and could not therefore provide a basis for the court’s probable cause determination. Petitioners conceded, however, that if the files could contain evidence of violations of Kansas law not premised on a new or unannounced legal interpretation, and the evidence could not otherwise be obtained, the State had demonstrated a compelling interest justifying an order to produce at least parts of the files.
In an apparent response to petitioners’ argument regarding the unconstitutionally of the attorney general’s interpretation of the statutory exception, Maxwell agreed that no crime had been committed (or, presumably, would need to be prosecuted) if the investigation ultimately turned up no more than a reasonable medical debate over the condition of each of the patients and the threats posed to her by continuing her pregnancy to term.
At the conclusion of the hearing, Judge Anderson orally denied the motion to quash and ordered production of the subpoenaed files by October 15, 2004.
Petitioners filed a motion for reconsideration on October 8, 2004, and informed Judge Anderson of their intent to file a petition for writ of mandamus in the event their motion for reconsideration was denied. Five days later, Judge Anderson ordered a stay of the production of the files until his further order.
On October 21, 2004, the judge issued a written Memorandum and Order, requiring petitioners to produce the 90 unredacted patient files by October 28, 2004. The order stated that K.S.A. 65-6703 prohibited an abortion when the fetus is viable unless the referring physician and performing physician “determine that the abortion is necessary to preserve the life of the pregnant woman and that a continuation of the pregnancy would cause a substantial and irreversible impairment of a major bodily function of the pregnant woman.” (Emphasis added.) Judge Anderson also noted that the statute required the gestational age of the fetus to be determined, the basis for that determination to be documented, and both ultimately to be reported to the Kansas Department of Health and Environment. He continued:
“The Court has considered the medical facilities’ assertions of constitutional flaws in the application of K.S.A. 65-6703. The Court does not find the presumed flaws preclude production of the records. The Attorney General has described sufficient basis for conducting the inquisition. Even assuming the constitutional flaws in the presumed application of K.S.A. 65-6703 as suggested by the medical facilities, the Court finds the Attorney General is authorized to conduct the inquisition.”
Judge Anderson’s order also discussed K.S.A. 2004 Supp. 38-1522, the statute governing mandatory reporting of suspected child abuse, specifically distinguishing the case before him from an ongoing federal court action. See Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006). Judge Anderson noted that the federal case involved investigations of “mandatory reporting of sexual activity between similar age minors when injury is not reasonably suspected,” which this case does not. Kline has issued a formal written opinion stating that all sexual intercourse engaged in by anyone younger than 16 is, by definition, rape and inherently injurious. Att’y Gen. Op. No. 2003-17. Kline’s opinion deviates from the position of his predecessor once removed, now his lawyer in tire contempt proceeding, Robert T. Stephan. See Att’y Gen. Op. No. 1992-48.
Judge Anderson’s order also provided for certain precautions to guard against unnecessary disclosure of sensitive, confidential, or irrelevant information in the patient files: (1) The files were to be deposited in the district court and would not be disclosed to anyone, including the attorney general or his agents, until further court order; (2) the court would select special counsel to conduct an initial in camera review of the files and to assist in identifying sensitive, confidential, or irrelevant information; and (3) fire court would require the attorney general to “nominate one or more licensed physicians to examine medical records” and to explain to the court the relevance of any document designated for photocopying. Judge Anderson also stated that the redaction of patient-identifying information would be considered before any copies of the files would be released. Finally, petitioners were to be given an opportunity to make suggestions regarding the management of the records to cause no broader intrusion into the patients’ privacy than necessary.
In response, petitioners filed a motion for a protective order, asking Judge Anderson to permit them to redact identifying information from the files before production. Judge Anderson had not ruled on this motion when the petition for mandamus was filed with this court on October 26, 2004, 2 days before production was required under the district court order.
Certain additional facts concerning the inquisition have been revealed in the course of the proceedings in the district court and before us. An affidavit generated by a lawyer in the attorney general’s office confirms that the inquisition had been ongoing for approximately 2 years as of May 2005, and focuses on at least allegedly unjustified “late-term” abortions and possible unreported child sexual abuse. Maxwell also asserted before Judge Anderson that crimes other than violations of the criminal abortion and mandatory child abuse reporting statutes might be uncovered. Moreover, Deputy Attorney General Eric Rucker stated at oral argument before this court that the inquisition concerned emotional abuse, as well as sexual abuse, of minors.
Approximately three-fourths of the files sought deal with adult patients; the remainder detail services provided to minors. Approximately two-thirds of the files are sought from Alpha Medical Clinic, the remaining one-third from Beta Medical Clinic, which does not perform “late-term” abortions.
Rucker also stated before this court that petitioners and child molesters are the targets of this criminal inquisition and that there is probable cause to believe that each of the 90 files would provide evidence of at least one felony and one misdemeanor. Indeed, he said that each of the adult patients’ files was expected to contain evidence of more than one felony. Rucker also informed this court that none of the patients whose files are sought is a target of the inquisition. See K.S.A. 65-6703(c) (patient cannot be prosecuted under criminal abortion statute). Rucker was — and the record is — silent on whether individual physicians also are targets of the inquisition.
The Parties' Positions
In their brief, petitioners assert that we must compel Judge Anderson and Kline to cease further enforcement of the subpoenas. Should we regard this outcome as too extreme, they propose several alternatives: (1) An order that respondents desist from seeking further enforcement of the subpoenas without first demonstrating in a hearing that a compelling need for the patient files exists and that the State seeks no more protected information than that amount absolutely necessary to meet the compelling need; (2) an order permitting petitioners to redact all patient-identifying and irrelevant information from the files before production; and (3) an order requiring Judge Anderson to enter a protective order to protect the patients’ rights before the files are produced.
The attorney general argues: (1) Mandamus is not an appropriate remedy because respondents have not failed to perform a clear legal duty owed to petitioners, because mandamus cannot be used to thwart a criminal investigation, and because the petition improperly seeks injunctive relief based on issues not ripe for review;
(2) even if mandamus is hypothetically appropriate, there is no constitutional or statutoiy basis for the extraordinary judicial intervention urged by the petitioners, and such intervention would do violence to the prosecutorial function and the separation of powers;
(3) the enforcement of the subpoenas will not violate any patient’s constitutional right to privacy, because investigation and prosecution of crimes are compelling state interests and the district court’s order is narrowly tailored to protect the rights of the patients while meeting the needs of the inquisition; and (4) the physician-patient privilege is not applicable in this matter.
Petitioners’ and the attorney general’s positions on one other aspect of the case also are worth noting at this point. Since the beginning of this mandamus proceeding, petitioners also sought to stay the subpoenas’ nondisclosure provision. Petitioners’ supplemental motion on this subject was granted by this court on March 9, 2005. Earlier —• on October 28, 2004 — we had entered an order requiring all filings in the mandamus action to be kept under seal. We eventually made an exception for the formal briefs to be filed by the parties. Ultimately, these orders and their potential intersection gave rise to petitioners’ allegation that the attorney general is in contempt of this court because of certain attachments to his brief and his public comments thereon.
In this mandamus action, Judge Anderson does not argue the points raised by the other parties. Rather, in his Answer and Statement Regarding Joint Petition for Writ of Mandamus and Order Staying Production of Medical Records, he seeks guidance from this court on the following four questions:
“1. After a motion to quash an inquisition subpoena has been filed or otherwise, does a district court have the authority or any obligation under the inquisition statute or other applicable law to grant a person or entity challenging the subpoena any other procedural rights, such as a hearing, in addition to filing a motion to quash and, if so, what are these rights?
“2. After a motion to quash an inquisition subpoena has been filed or otherwise, does a district court have the authority or any obligation under the inquisition statute or other applicable law to disclose to the subpoena recipient all or any portion of the information constituting the factual basis for the reasonable suspicion upon which the subpoena was issued, and, if so, under what circumstances and to what extent?
“3. To what extent, if any, does the recipient of an inquisition subpoena have a right to confront or challenge the evidence of reasonable suspicion upon which the subpoena was issued and, if so, at what stage of the inquisition?
“4. Upon motion to quash an inquisition subpoena or otherwise, is a district court authorized to conduct or supervise an in camera review of subpoenaed materials or utilize other measures it deems appropriate to protect the competing interests of the Attorney General under the inquisition statute and those of a subpoena recipient or others?”
Finally, this court also received an amicus curiae brief from the Kansas County and District Attorneys’ Association. The Association argues that the judicial branch has only a limited role in the precharge phase of criminal investigations and should involve itself in review of the prosecutor’s actions only “if extraordinary circumstances warrant it and no other relief would satisfy the cause of justice.”
Filings Since Oral Argument
After oral argument on September 8, 2005, the attorney general’s office filed two Motions to Clarify statements made by Rucker earlier that day.
One of the motions states that the attorney general “has no qualms with” the district court, rather than the attorney general, selecting the physician who would do the initial in camera review of the patient files. The attorney general “simply opposes said physician^) being appointed by petitioners who are the targets of the criminal investigation.” This motion also states that the attorney general does not oppose redaction of all patient-identifying information before the district court’s special counsel and physician perform the in camera review, although it asserts that Judge Anderson will need to be provided with the redacted information “in order to cross-reference the files with records and evidence from other sources.”
The other motion, despite its caption, changes rather than clarifies certain statements made by Rucker in response to questions from members of this court during oral argument. It states in pertinent part:
“1. As part of this criminal investigation and/or inquisition, respondent has sought records and information from other mandatoiy reporters besides the petitioners in the present mandamus action. This effort has included subpoenas for records relating to live births involving mothers under the legal age of sexual consent.
“2. At oral argument, counsel was unable to directly and adequately respond to the questions from the bench specifically relating to this topic because of the secret nature of the criminal investigation and inquisition and the existence of a do not disclose order relating to the subpoenas of live birth records.”
It is evident that, at least in the attorney general’s judgment, whatever order allegedly compelled Rucker to be less than forthright in his answers to this court’s questions on September 8,2005, had either been lifted or dissipated or overcome by a competing priority by mid-October 2005, when Kline called a press confer ence and announced that he had obtained the birth records of 62 babies bom to girls younger than 16. The mechanism by which Kline obtained tírese records remains somewhat unclear, as does the reason for and timing of the press conference.
We also note that petitioners, since oral argument, filed a Motion for Order Directing the District Court to Forward the Entire Inquisition Record to This Court, and that the attorney general filed a response to this motion. We deny this motion at this time, because we are able to address the issues raised in this mandamus proceeding on the record before us.
The Criminal Inquisition Statutory Scheme
K.S.A. 2004 Supp. 22-3101 et seq. governs the conduct of inquisitions in criminal cases in Kansas.
K.S.A. 2004 Supp. 22-3101(1) authorizes the attorney general, if he or she has knowledge of any alleged violation of Kansas law, to apply to a district judge to conduct an inquisition. Once the attorney general’s verified application setting forth the alleged violation of the law is filed, the judge “shall issue a subpoena for the witnesses named in such praecipe commanding them to appear and testily concerning the matters under investigation.” K.S.A. 2004 Supp. 22-3101(1).
K.S.A. 2004 Supp. 22-3101 does not mention subpoenas duces tecum such as those at issue here, but they are used regularly in criminal cases across the state. Our Court of Appeals has previously held that such subpoenas may issue in a prosecutor’s inquisition focused on violations of narcotics laws under K.S.A. 2004 Supp. 22-3101(2). Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978). In addition, this court has implicitly upheld the Southwestern Bell decision on at least three separate occasions. See State ex rel. Brant v. Bank of America, 272 Kan. 182, 188, 31 P.3d 952 (2001) (State Securities Commissioner subpoenas of bank documents in connection with administrative investigation); State v. Schultz, 252 Kan. 819, 822-23, 850 P.2d 818 (1993) (inquisition subpoenas of bank, phone records); State ex rel. Cranford v. Bishop, 230 Kan. 799, 800-01, 640 P.2d 1271 (1982) (district court has the inherent power to refuse to issue subpoenas to avoid abuse of judicial process); see also State, ex rel. v. Rohleder, 208 Kan. 193, 490 P.2d 374 (1971) (pre-Southwestem Bell decision; inquisition subpoena sought testimony and production of books, records, and invoices). We agree that both the K.S.A. 2004 Supp. 22-3101(1) judicial inquisition of this case and the K.S.A. 2004 Supp. 22-3101(2) prosecutorial inquisition at issue in the Court of Appeals’ Southwestern Bell case permit subpoenas calling for the production of documents as well as subpoenas calling for witness testimony.
The statute also provides that “[a]ny person who disobeys a subpoena issued for such appearance or refuses to be sworn as a witness or answer any proper question propounded during the inquisition, may be adjudged in contempt of court.” K.S.A. 2004 Supp. 22-3101(3). Similarly, this provision would apply if a person or entity refuses without justification to respond to an inquisition subpoena duces tecum.
The statute is silent on the standard that governs a district court’s pre-subpoena review of the attorney general’s allegations, and there appears to be some confusion on this point in the record before us: The two subpoenas at issue recite that Judge Anderson has found “probable cause exists to believe that evidence of a crime or crimes may be located in the medical records identified.” (Emphasis added.) However, two of the questions Judge Anderson directed to our attention in this proceeding specifically assume that a district judge’s only duty before issuing inquisition subpoenas duces tecum is to find reasonable suspicion that evidence of the alleged violations will be found in the documents sought. Although the parties have not focused on this question, we believe it necessary to address it so that we are responsive to Judge Anderson’s questions.
The purpose of an inquisition is to gather information to determine whether probable cause exists to support a criminal prosecution. State v. Cathey, 241 Kan. 715, 720, 741 P.2d 738 (1987); In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 473, 932 P.2d 1023 (1997). It does not make sense to require a prosecutor seeking an inquisition subpoena to meet a probable cause standard in order to gather information he or she needs to determine whether probable cause for prosecution exists. We therefore hold that the standard to be employed by a district judge evaluating whether to issue subpoenas for witness testimony or documents under K.S.A. 2004 Supp. 22-3101(1) is reasonable suspicion rather than probable cause.
The Known Criminal Statutes at Issue
As previously mentioned, the attorney general has expressly alleged that petitioners violated two statutes: K.S.A. 65-6703, the criminal abortion statute, and K.S.A. 2004 Supp. 38-1522, which requires reporting of sexual abuse of children.
The structure of K.S.A. 65-6703 is as follows:
A pregnant woman who desires an abortion must have her treating physician determine the gestational age of the fetus. If that age is less than 22 weeks, then the woman may obtain an abortion as long as appropriate documentation requirements are met. K.S.A. 65-6703(b)(1).
If the gestational age is 22 weeks or more, the treating physician must then make a determination of fetus viability, i.e., the ability of the fetus to survive outside the womb. K.S.A. 65-6703(b)(2). If the fetus is not viable, the woman may obtain an abortion as long as appropriate documentation and reporting requirements are met. K.S.A. 65-6703(b)(3).
If the fetus is viable, then the treating physician and the physician who will perform the abortion must agree that the abortion is necessary to preserve the life of the pregnant woman or because “continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman,” before an abortion can be performed and documented. K.S.A. 65-6703(a); (b)(4).
Violation of this statute is a Class A nonperson misdemeanor for the first violation and a severity level 10 nonperson felony for any subsequent violation. K.S.A. 65-6703(g).
The second statute known to be at issue, K.S.A. 2004 Supp. 38-1522, requires health care providers, inter alia, to file a report with the Kansas Department of Social and Rehabilitation Services when they have “reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or -sexual abuse.” K.S.A. 2004 Supp. 38-1522(a). Sexual abuse, as defined under K.S.A. 2004 Supp. 38-l502(c), includes sexual intercourse with a child under 16 years of age. See K.S.A. 2004 Supp. 21-3502(a)(2); K.S.A. 21-3504(1). K.S.A. 2004 Supp. 38-1522(f) provides that willful and knowing failure to report injury to a child arising from abuse is a class B misdemeanor.
There is no dispute between the parties that petitioners have a legal duty to report suspected child sexual or other abuse, including sexual intercourse with a child under 16, under these provisions.
Propriety of Mandamus
The Kansas Constitution provides this court with original jurisdiction for proceedings in mandamus. Kan. Const. Art. 3, § 3. In addition, K.S.A. 60-801 provides:
“Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
This court also has recognized mandamus as an appropriate avenue to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of public business. Wilson v. Sebelius, 276 Kan. 87, 90, 72 P.2d 553 (2003). Also, although a district judge’s discretion cannot be controlled by mandamus, if the judge’s order threatens to deny a litigant a right or privilege that exists as a matter of law and there would be no remedy by appeal, mandamus may be invoked. Hulme v. Woleslagel, 208 Kan. 385, 388, 493 P.2d 541 (1972). This court may also exercise its original jurisdiction and settle a question through mandamus if the petition presents an issue of great public importance and concern. Wesley Medical Center v. Clark, 234 Kan. 13, 16, 669 P.2d 209 (1983).
Respondent Kline does not deal directly with these authorities, instead continuing to assert that mandamus must be limited to situations in which a public official has failed to perform a clear legal duty. We agree that such a situation is appropriate for our intervention via mandamus, but mandamus also can be pursued in the situations described by the Wilson, Hulme, and Wesley Medical Center cases cited above. In our view, the situation before us here fits each of those precedents.
It is evident from the questions Judge Anderson submitted to this court that he seeks an authoritative interpretation of the law to guide him in his performance of his judicial responsibilities. In addition, petitioners are correct in their contention that, if Judge Anderson’s order is allowed to stand as is, and it is later determined that it relied upon an erroneous interpretation of the law, there will be no sufficient remedy on appeal for patients whose rights to privacy have already been violated. And, finally, no one can argue convincingly that the questions of whether and when a pregnant woman’s constitutional right to privacy in her reproductive choices must give way to public regulation of abortion is not an issue of great public concern. The issue of abortion has long had a polarizing effect on national and state politics and policies. Although some may lament this fact, they cannot deny it.
Kline also argues that allowing petitioners to obtain relief through mandamus will thwart his investigation. We disagree. Petitioners do not seek to stop the entire investigation. Rather, at this stage of the proceeding, they appear to insist only that their patients’ privacy rights must be balanced with the State’s compelling need for information relevant to the criminal investigation. See King v. State, 272 Ga. 788, 791-92, 535 S.E.2d 492 (2000) (State’s use of subpoena for compelling interest of enforcing criminal laws must be narrowly tailored to make certain “equally compelling constitutional right of privacy is not unreasonably impacted”).
Kline next argues that this action should be dismissed because petitioners seek injunctive relief and because the issues raised are not ripe for review. He is correct that this court does not have original jurisdiction to issue injunctive relief, see Dean v. State, 250 Kan. 417, 427, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992); Collins v. York, 175 Kan. 511, Syl. ¶ 2, 265 P.2d 313 (1954), but this is not the remedy petitioners seek. They do not assert that the inquisition should be enjoined. At least by the time of oral argument before this court, they acknowledged the State’s legitimate law enforcement interest and sought only to have their patients’ rights weighed appropriately against it.
As for ripeness, Kline emphasizes that the district court has not yet had an opportunity to review the medical records in camera. This is unpersuasive, because, as Judge Anderson’s order now stands, a physician or physicians selected solely by the attorney general would be permitted to participate in that review. The attorney general’s post-oral argument position recognizes the competing interests at stake, acknowledging the district judge should select the reviewing physician or physicians. It also demonstrates that the ripeness argument is without merit.
Finally, even if mandamus is hypothetically appropriate, Kline argues that there is no constitutional or statutory basis for this extraordinary judicial intervention and that such intervention would do violence to the prosecutorial function and the separation of powers.
The attorney general is correct that prosecution of crime is an executive function. See State v. Compton, 233 Kan. 690, 698, 664 P.2d 1370 (1983); State, ex rel., v. Rohleder, 208 Kan. 193, 194-95, 490 P.2d 374 (1971). And this court is mindful of its obligation to respect our state constitution’s separation of powers among the three branches of government. See State v. Beard, 274 Kan. 181, 185, 49 P.3d 492 (2002). However, Kline’s separation of powers argument is otherwise unpersuasive. He fails to cite any authority supporting the idea that courts cannot review requests for subpoenas in inquisitions. The statutory language, i.e., K.S.A. 2004 Supp. 22-3101, clearly supports that power in the courts. Moreover, Kline admits that courts are required to prevent abuse of the judicial process by prosecutors. See State ex rel. Cranford, 230 Kan. at 800-01.
In view of the foregoing, we hold that mandamus is the appropriate avenue for relief, if petitioners are able to demonstrate that relief is merited. See State, ex rel., v. Salome, 169 Kan. 585, 595, 220 P.2d 192 (1950) (burden on mandamus petitioner).
Constitutional Right to Privacy
Petitioners argue that mandamus is warranted because Judge Anderson’s order fails to protect the subject patients’ constitutional rights to privacy. The attorney general asserts that the patients’ rights are adequately protected by Judge Anderson’s order.
We discern the possibility for infringement of three federal constitutional privacy interests.
The first is the right to maintain the privacy of certain information. See Whalen v. Roe, 429 U.S. 589, 599 n.25, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977) (“right to be let alone” is most valued); Eastwood v. Dept. of Corrections of State of Okl., 846 F.2d 627, 631 (10th Cir. 1988) (information regarding “personal sexual matters”); see also A.L.A. v. West Valley City, 26 F.3d 989, 990 (10th Cir. 1994) (“confidential medical information is entitled to constitutional privacy protection”); Aid for Women v. Foulston, 441 F.3d 1101 (minors’ right to informational privacy).
A second, perhaps related, federal constitutional right to obtain confidential health care has been recognized explicitly by at least the Sixth Circuit. See Gutierrez v. Lynch, 826 F.2d 1534, 1539 (6th Cir. 1987); In re Zuniga, 714 F.2d 632, 642 (6th Cir.), cert. denied Zuniga v. United States, 464 U.S. 983 (1983); see also Mann v. University of Cincinnati, 824 F. Supp. 1190, 1199 (S.D. Ohio 1993) (“patients’ interest in making decisions vital to their health care may be impaired by unwarranted disclosures”). And, as noted in the Mann case out of the Southern District of Ohio, other federal district courts have echoed the Sixth Circuit position. Mann, 824 F. Supp. at 1196 n.2, citing Inmates of New York State with Human Immune Deficiency Virus v. Cuomo, No. 90-CV-252, 1991 WL 16032 (N.D.N.Y. Feb. 7, 1991); Rodriguez v. Coughlin, No. CIV-87-1577E, 1989 WL 59607 (W.D.N.Y. June 5, 1989); Doe v. Meachum, 126 F.R.D. 452 (D. Conn. 1989); Plowman v. United States Dep’t of Army, 698 F. Supp. 627, 633 and n.22 (E.D. Va. 1988); Doe v. Coughlin, 697 F. Supp. 1234, 1237 (N.D.N.Y. 1988); Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988), aff'd 899 F.2d 17 (7th Cir. 1990). See Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994). Compare Borucki v. Ryan, 827 F.2d 836, 840 (1st Cir. 1987) (discussing “confidentiality” and “autonomy” aspects of federal constitutional right to privacy: “the individual interest in avoiding disclosure of personal matters” and “the interest in independence in malting certain kinds of important decisions”); Pesce v. J. Sterling Morton High Sch. Dist., 830 F.2d 789, 796 (7th Cir. 1987) (same); In re Search Warrant, 810 F.2d 67, 71-72 (3d Cir. 1987) (balancing patients’ rights to privacy in medical records against government intrusion through warrant directed to physician under investigation for insurance fraud). But see Sherman v. Jones, 258 F. Supp. 2d 440, 442-43 (E.D. Va. 2003) (citing Whalen v. Roe and Fourth Circuit precedent to conclude individual’s confidential medical information outside constitutionally protected “zone of privacy”).
The third federal constitutional right at stake, long recognized and protected by the United States Supreme Court, is the fundamental right of a pregnant woman to obtain a lawful abortion without government imposition of an undue burden on that right. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874-78, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992). If inquisition subpoenas for documents related to abortions are not handled sensitively, the fundamental rights of women who may seek abortions in the future could be substantially impaired or the assertion of tiróse rights prevented.
We have not previously recognized — and need not recognize in this case despite petitioners’ invitation to do so — that such rights also exist under the Kansas Constitution. But we customarily interpret its provisions to echo federal standards. See, e.g., State v. Morris, 255 Kan. 964, 979-81, 880 P.2d 1244 (1994) (double jeopardy provisions of federal, Kansas constitutions “co-equal”); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993) (Section 15 of Kansas Constitution’s Bill of Rights identical in scope to Fourth Amendment of federal Constitution); State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 426, 636 P.2d 760 (1981) (Section 1 of Kansas Constitution’s Bill of Rights given same effect as Equal Protection Clause of Fourteenth Amendment of federal Constitution).
Regarding petitioners’ standing to assert their patients’ rights, the United States Supreme Court has held that abortion providers can take such action. Singleton v. Wulff, 428 U.S. 106, 117, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976) (physician had standing to assert rights of patients seeking abortions; patient “may be chilled from such assertion by a desire to protect the very privacy of her decision from the publicity of a court suit”). The Seventh Circuit has followed suit. See Northwest Memorial Hosp. v. Ashcroft, 362 F.3d 923, 928 (7th Cir. 2004) (Department of Justice acknowledgment that hospital-custodian of medical records of women’s abortions is appropriate representative of patient’s privacy interests). And a panel of the Tenth Circuit has concluded that providers of family planning services have third-party standing to assert their patients’ informational privacy rights. Aid for Women v. Foulston, 441 F.3d 1101.
Having identified specific constitutional privacy interests and confirmed petitioners’ standing to champion them, we next examine the extent of the State’s interest in invading patient privacy. It is beyond dispute that the State has a compelling interest in pursuing criminal investigations. See Branzburg v. Hayes, 408 U.S. 665, 699-701, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972). And an individual’s right to informational privacy is not necessarily “absolute; rather, it is a conditional right which may be infringed upon a showing of proper governmental interest.” Planned Parenthood of Southern Arizona v. Lawall, 307 F.3d 783, 790 (9th Cir. 2002) (citing In re Crawford, 194 F.3d 954, 959 [9th Cir. 1999]). Also, the fundamental right to obtain a lawful abortion may be regulated as long as the regulation does not constitute an undue burden. See Casey, 505 U.S. 874-78.
Our evaluation necessarily involves weighing of these competing interests, including the type of information requested, the potential harm in disclosure, the adequacy of safeguards to prevent unauthorized disclosure, the need for access, and statutory mandates or public policy considerations. See Lawall, 307 F.3d at 790 (citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 [3rd Cir. 1980]); see also Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th. Cir. 1995) (disclosure of diary must advance compelling state interest in least intrusive manner).
Petitioners contend the attorney general has not shown a compelling need for unredacted patient files. Kline now takes the position that the patients’ identifying information may be redacted. Petitioners further assert that it is “inconceivable” the disclosure of entire patient files would be the least intrusive way to meet a compelling state interest in uncovering noncompliance with the criminal abortion and mandatory child abuse reporting statutes. Petitioners have pointed to the example of the many details of each patient’s sexual and contraceptive history that the files are likely to contain but that are equally likely to be irrelevant to the factors required to be considered and documented under the criminal abortion statute. With regard to the child abuse reporting statute, we expect that nearly all information except the identity and age of the male who impregnated the minor patient, his relationship to the minor patient, the circumstances surrounding the sexual intercourse that produced the pregnancy, and compliance or noncompliance with reporting requirements is likely to be irrelevant to Kline’s inquiiy.
The type of information sought by the State here could hardly be more sensitive, or the potential harm to patient privacy posed by disclosure more substantial. Judge Anderson’s order does not do all it can to narrow the information gathered or to safeguard that information from unauthorized disclosure once it is in the district court’s hands. Although the criminal inquisition statutes do not speak to tire need for such narrowing and safeguards, the constitutional dimensions of this case compel them.
Under the circumstances of this case, Judge Anderson was correct to hold a closed hearing to allow the parties to address appropriate limitations on disclosure — limitations that strike the necessary balance between patient privacy and government investigation. His order simply failed to incorporate all that the hearing had revealed. We discern three specific errors:
First, the judge misstated a critical provision of the criminal abortion statute. The two physicians who must agree that an abortion at 22 weeks’ gestational age or later is necessary must do so on the basis that the life of the pregnant woman is endangered or on the basis that “continuation of the pregnancy would cause a substantial and irreversible impairment of a major bodily function of the pregnant woman.” K.S.A. 65-6703(a). Judge Anderson joined these two bases by the conjunction “and” rather than the disjunctive “or.” This misstatement of the law must be corrected lest the attorney general be misled as to the limits of his authority to prosecute.
Second, Judge Anderson also stated that “presumed flaws” in the attorney general’s interpretation of the criminal abortion or mandatory child abuse reporting statutes would not prevent production of the files called for in the subpoenas. In essence, this statement adopted senior assistant attorney general Maxwell’s position that any error in the attorney general’s interpretation was irrelevant. We disagree. To hold otherwise could permit exactly the abuse of prosecutorial power the courts must be vigilant to prevent. To the extent the inquisition rests on the attorney general’s ignorance, disregard, or misinterpretation of precedent from the United States Supreme Court, subpoenas pursuant to the inquisition cannot be allowed.
For example, the United States Supreme Court has long held, and continues to hold that, in order to be constitutional, state restrictions on abortions must include exceptions to preserve both the life and health of the pregnant woman. See Casey, 505 U.S. at 846 (emphasizing this rule as part of the “essential holding” of Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, reh. denied 410 U.S. 959 [1973]); see also Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 163 L. Ed. 2d 812, 126 S. Ct. 961 (2006). Moreover, “health” has been interpreted by the United States Supreme Court to include the mental or psychological health of the pregnant woman. See Doe v. Bolton, 410 U.S. 179, 191-92, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973); United States v. Vuitch, 402 U.S. 62, 71-72, 28 L. Ed. 2d 601, 91 S. Ct. 1294 (1971). The attorney general has said he disagrees with requiring an exception to preserve the pregnant woman’s mental health. Until the United States Supreme Court or the federal Constitution says otherwise, however, the mental health of the pregnant woman remains a consideration necessary to assure the constitutionality of the Kansas criminal abortion statute. Judge Anderson was not free to decide the subpoenas should issue in the first place or whether the petitioners’ motion to quash should be denied without considering the soundness of any legal interpretations on which the attorney general depends. This is true of any district judge who passes on an inquisition application or associated subpoenas.
Third, Judge Anderson erred in refusing to allow redaction of patient-identifying information from the files. This information must be redacted by petitioners before the files are turned over to the court. Should patient-identifying information later be required, the district judge may approve appropriate subpoenas for that information at that time.
As noted above, Judge Anderson’s order also permitted the attorney general to select the physician or physicians who would participate in the initial in camera review of the records. At oral argument, Rucker stated that the attorney general was unwilling to trust doctors employed by or associated with petitioners to participate in this segment of the process. Understandably, petitioners are equally reluctant to have a physician or physicians selected by the attorney general do so. Kline’s Motion to Clarify eliminates this issue, however. The attorney general has now explicitly stated that he does not oppose Judge Anderson’s appointment of the physician or physicians to be trusted with this task.
In sum, Judge Anderson must withdraw his order and first evaluate the inquisition and subpoenas in light of what the attorney general has told him regarding his interpretation of the criminal statutes at issue. If the judge requires additional information in order to perform this evaluation, he should seek it from the attorney general in the inquisition proceeding. As targets of the investigation, petitioners need not be included in any hearing or other communication to enable this evaluation.
Only if Judge Anderson is satisfied that the attorney general is on firm legal ground should he permit the inquisition to continue and some version of the subpoenas to remain in effect. Then he also must enter a protective order that sets forth at least the following safeguards: (1) Petitioners’ counsel must redact patient- identifying information from the files before they are delivered to the judge under seal; (2) the documents should be reviewed initially in camera by a lawyer and a physician or physicians appointed by the court, who can then advise the court if further redactions should be made to eliminate information unrelated to the legitimate purposes of the inquisition. This review should also determine whether any of the files demonstrate nothing more than the existence of a reasonable medical debate about some aspect of the application of the criminal abortion and/or mandatory child abuse reporting statutes, which the attorney general’s office has already acknowledged would not constitute a crime. If so, those files should be returned to petitioners; and (3) any remaining redacted files should be turned over to the attorney general.
Statutory Physician-Patient Privilege
Petitioners also contend that the subpoenas violate the physician-patient privilege outlined in K.S.A. 60-427. The attorney general counters that public policy demands the physician-patient privilege not be used to shield criminal conduct.
Because we have ruled that all patient-identifying information must be redacted from the files before they are produced to the attorney general, we need not further discuss the statutory physician-patient privilege at this time. We also do not address — because we have not been asked to do so — whether federal provisions such as the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq., may have application or effect.
Further Disclosures to Petitioners
Petitioners also contend they should be provided with additional information about the basis for the inquisition. We disagree on current showing. Kansas law clearly establishes that courts should not permit unreasonable subpoenas (see In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 256-57, 891 P.2d 422 [1995] [subpoenas not unreasonable or oppressive]; State ex rel. Cranford, 230 Kan. at 801 [district court has inherent power to refuse issuance of subpoenas]), and we believe the procedure we have re quired Judge Anderson to follow adequately addresses the concerns raised at this point by the petitioners.
Contempt Proceedings
On April 11, 2005, petitioners filed a Joint Motion for Order Directing Attorney General Kline To Show Cause Why He Should Not Be Held In Contempt Of Court For Violating Court Orders Sealing The Record In This Case. Specifically, petitioners took issue with the attorney general’s attachment to his brief of redacted portions of the October 5, 2004, district court hearing transcript and the resulting October 21, 2004, Memorandum and Order and with his later press conference at which the brief and its attachments were openly discussed. We issued an Order to Show Cause to the attorney general, who responded in writing and at oral argument before this court.
It is well established that this court “is a constitutional tribunal and has inherent power to punish for contempt and to determine whether a contempt has been committed.” State v. Rose, 74 Kan. 260, 261, 85 Pac. 803 (1906); see also In re Root, 173 Kan. 512, 515, 249 P.2d 628 (1952) (“Of the right of this court to punish for contempt there can be no doubt.”). In addition to contempt authority, Kansas courts have the inherent power to impose sanctions for bad faith conduct, irrespective of any statutory provision for sanctions. See Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117 (1981); Knutson Mortgage Corp. v. Coleman, 24 Kan. App. 2d 650, 652, 951 P.2d 548 (1997).
Petitioners contend that the attorney general’s actions violated three court orders: (1) Judge Anderson’s October 4, 2004, order, requested by the attorney general, that directed the parties not to disclose the transcript of the hearing; (2) this court’s October 28, 2004, order directing all filings in this action to be made under seal; and (3) the February 14,2005, written notice sent by the Clerk of the Appellate Courts advising all counsel of record that briefs would be “open records” but that the record itself would remain sealed.
The allegations here relate to what is known as indirect contempt, i.e., conduct outside the presence of a judge. The procedure governing indirect contempt is found in K.S.A. 2004 Supp. 20-1204a, which is strictly construed against the moving party. Cyr v. Cyr, 249 Kan. 94, Syl. ¶ 5, 815 P.2d 97 (1991).
Under this statute, this court lacks jurisdiction to address the first of petitioners’ contentions, that Kline violated Judge Anderson’s October 5, 2004, order. K.S.A. 2004 Supp. 20-1204a(a) provides that “the court that rendered” an underlying order may address contempt allegations regarding that order. The statute’s requirements are jurisdictional. See Bond v. Albin, 29 Kan. App. 2d 262, 263, 28 P.3d 394 (2000), rev. denied 271 Kan. 1035 (2001). Judge Anderson, rather than this court, must first address petitioners’ contempt allegations regarding the October 5, 2004, order.
Petitioners’ remaining allegations are correctly addressed to this court, which issued the subject orders.
Indirect contempt may be either criminal or civil. Criminal contempt proceedings attempt “ ‘ “to preserve the power and vindicate the dignity of the courts and to punish for disobedience” ’ ” of court orders; criminal contempt tends to obstruct the administration of justice. State v. Davis, 266 Kan. 638, 645, 972 P.2d 1099 (1999). Civil contempt is failing to do something that the court has ordered for the benefit of another party to the proceeding, and civil contempt proceedings are remedial in nature. Davis, 266 Kan. 638, Syl. ¶ 2; State v. Jenkins, 263 Kan. 351, 358, 950 P.2d 1338 (1997) (citing Krogen v. Collins, 21 Kan. App. 2d 723, 726, 907 P.2d 909 [1995]).
Petitioners do not specifically characterize their allegations as either criminal or civil; rather, they say only that Kline committed “contemptuous conduct” through “intentional disclosure of sealed records.” Because this complaint centers on an alleged violation of court orders, this qualifies as an allegation of criminal contempt.
“Before one can be punished for contempt in not complying with the decree of a court, a particular or precise thing to be done by the party proceeded against must be clearly and definitely stated.” Ensch v. Ensch, 157 Kan. 107, Syl. ¶ 2, 138 P.2d 491 (1943). Further, a party “should not be punished for contempt for disobeying a decree, if the decree is capable of construction consistent with innocence.” Ensch, 157 Kan. 107, Syl. ¶ 3; compare Jenkins, 263 Kan. at 358 (criminal contempt directed against dignity and authority of court, obstructing administration of justice). Moreover, intent is sometimes considered a necessary element of criminal contempt. See Threadgill v. Beard, 225 Kan. 296, Syl. ¶ 6, 590 P.2d 1021 (1979) (“Whether a particular act or omission is contemptuous depends not only upon the nature of the act itself, but upon intent, good faith, and the surrounding circumstances.”).
In his initial response to this court’s Order to Show Cause, the attorney general contended that the documents attached to his brief were “but a very small fraction of the entire record before the lower court in the inquisition; we attached only what we believed necessary to support our arguments in this segment of the proceedings.” As for the news conference, Kline asserted that he “stressed the privacy protections put in place by the lower court and the law to prevent public disclosure of the medical records sought. ... I did not refer to the transcript of the lower court’s hearing, nor did I provide it at the news conference. Later that day, my communications director, after our brief had been filed, provided the transcript electronically to those who requested a copy.” Pie argued that “it was seemingly inconsistent to keep these pleadings under seal while at the same time suggesting that oral argument was likely.” Kline also argued that the press conference was “necessitated by the false impression left by the public filing of Petitioners’ brief and [Petitioners’] representation of the record.”
Kline’s initial responses were troubling. He admitted that he attached sealed court records to a brief he knew would be unsealed; that he did so knowingly because, in his sole estimation, he believed it to be necessary to further his arguments; that he held a press conference on this criminal matter merely because he determined that petitioners had painted his previous actions in an unflattering light; and that he later permitted his staff to provide electronic copies of the sealed transcript to anyone who requested them. In essence, Kline has told this court that he did what he did simply because he believed that he knew best how he should behave, regardless of what this court had ordered, and that his priorities should trump whatever priorities this court had set. Furthermore, although there is conflict between the parties on exactly what was said in the press conference, i.e. whether the actual content of the sealed documents was discussed, Kline’s stated reason for holding the conference — to combat what he saw as unflattering earlier press coverage — does not appear to be among the permissible reasons for an attorney in his position to engage in extrajudicial statements under Kansas Rule of Professional Conduct 3.6 (2005 Kan. Ct. R. Annot. 473). This too is troubling.
At oral argument before this court, Kline’s lawyer, a former four-term attorney general, wisely altered the tone of Kline’s response. He characterized whatever mistakes Kline may have made as honest ones and said his client was acting in good faith. He also, as Kline eventually had done for himself in his written response, made a classic “no harm, no foul” argument: Any disclosure of sealed material did nothing to impair the orderly nature of this proceeding or the soundness of its eventual result; the attorney general and his staff did not release information harmful to personal privacy, prejudicial to the administration of justice, or detrimental to this court’s performance of its duties.
We conclude that, despite the attorney general’s initial defiant tone, he should not be held in contempt at this time. No prejudice has resulted from his conduct, a distinguishing feature of the cases cited to us by petitioners. See, e.g., United States v. Cutler, 58 F.3d 825, 837 (2d Cir. 1995) (criminal contempt; comments willful and likely to prejudice proceedings); United States v. Dubon-Otero, 98 F. Supp. 2d 187, 192 (D. Puerto Rico 2000) (inherent power to sanction counsel; behavior amounted to abuse of judicial process); In re Holley, 285 App. Div. 2d 216, 221, 729 N.Y.S.2d 128 (2001) (disciplinary case; public censure for disclosing sealed document to journalist).
This is a highly unusual case, the first in memory when this court has required public briefs and oral argument on a sealed record. Although we believe this directive was more challenging than confusing, and although the actions complained of here might well be characterized as criminal contempt in a different case, we are inclined to grant the attorney general the benefit of the doubt here. This is an unusually high-profile case attracting keen public interest throughout the state. We caution all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding.
Petition for mandamus granted. Motions to Clarify Argument noted. Motion for Order Directing the District Court to Forward the Entire Inquisition Record to This Court denied.
LARSON, S.J., assigned.
Certain matters that have been contained only in pleadings filed under seal require discussion in order to decide the merits of this mandamus action. This court lifts the seal only to the extent such matters are mentioned of necessity in this opinion.
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The opinion of the court was delivered by
Nuss, J.:
This is a products liability case. A sport utility vehicle rollover killed driver Wendy Griffin and injured one of her passengers, her sister Latasha. Wendy’s estate, Wendy’s heir-at-law, and Latasha (“Griffin”) sued Suzuki Motor Corporation (Suzuki) claiming that the design of the sport utility vehicle, a 1994 Suzuki Sidekick, was unreasonably dangerous and defective. The jury-found Suzuki 30% at fault and found Wendy 70% at fault, resulting in a judgment of $2.7 million for Latasha against Suzuki.
Suzuki appealed seven evidentiary rulings. The Court of Appeals reversed and remanded for a new trial because it held that two of the rulings violated K.S.A. 60-3307(a)(1) and (2) of the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq. Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. Specifically, the Court of Appeals held the district court should not have allowed into evidence Suzuki’s successor vehicle to the Sidekick, the Vitara, as a reasonable alternative design to the Sidekck. It also held the district court should not have allowed into evidence certain engineering and testing standards to analyze the Sidekck because they were not in use when the vehicle had been manufactured in 1994.
We granted Griffin’s petition for review pursuant to K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court admit evidence in violation of K.S.A. 60-3307(a)(2) because it allowed the J-2 vehicle (Vitara) as a reasonable alternative design to the J-l vehicle (Sidekck)? Yes.
2. Did the district court admit evidence in violation of K.S.A. 60-3307(a)(1) because it allowed testing and engineering standards not in use when the 1994 Sidekick was manufactured? Yes.
Accordingly, we affirm the Court of Appeals, reverse the district court, and remand for new trial.
FACTS
Because the facts of the accident and the procedural history of the case are not at issue in this appeal, we adopt the following facts as set forth by the Court of Appeals:
“Wendy Griffin was driving her sisters, Latasha and Evelyn, and her brother, Willie, home in May 1999 on U.S. Hwy 77 in Geary County. Wendy was driving a 1994 Suzuki Sidekick. When she removed one hand from the steering wheel to adjust her skirt, the car drifted onto the gravel shoulder on the right. Wendy steered hard left, then hard right, causing the vehicle to slide for a distance until it finally rolled over a number of times. Wendy, Latasha, and Willie were found outside the vehicle after the accident. Wendy later died. Latasha is now a paraplegic with diminished vision in her left eye from injuries she received in the accident. Willie eventually recovered from his injuries. Evelyn, who used her seat belt, was not ejected from the car and received minor injuries.
“The 1994 four-door Sidekick was designed, manufactured, and sold by [Suzuki], Eartha and Willie Green, Wendy and Latasha’s mother and stepfather, purchased the vehicle used in October 1996. The car was built in Januaiy 1994.
“Ultimately, three cases were consolidated for trial: Latasha Griffin, by and through her parent, Eartha Green, against [Suzuki] and American Suzuki Motors Corporation (ASMC); Eartha Green, as heir at law of Wendy Griffin against [Suzuki] and ASMC; and Eartha Green and National Bank and Trust Company, Co-Administrators for the estate of Wendy Griffin, against [Suzuki] and ASMC. The trials were bifurcated by dividing the liability and damage portions into separate proceedings.” Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004.
Griffin’s theory of liability was that the 1994 Sidekick was unreasonably dangerous and defective in design and that the defendants -negligently designed, manufactured, and tested the vehicle. Defendants responded that the sole cause of the accident was Wendy’s negligent driving.
During discovery Suzuki became convinced that Griffin wanted to prove her theory of liability by using Suzuki’s replacement for the Sidekick, the Vitara (J-2), as a reasonable alternative design to the Sideldck (J-l). Accordingly, Suzuld filed a motion in limine to exclude all references to the J-2.
The district court denied Suzuki s motion as well as Suzuki’s motion to reconsider. Suzuld made a third written effort, which the court denied. As a result, evidence of the J-2 as a reasonable alternative design to the J-l (1994 Sidekick) was later admitted at trial.
Suzuld filed two other motions in limine, both of which concerned an April 6,1999, report by General Motors engineer Ronald Leffert. The first motion sought to prohibit a Griffin expert witness, Wade Allen, from testifying about any opinions formed by his reliance upon Leffert’s report. The second motion sought to exclude General Motors’ Vehicle Technical Specifications for Stability Margin. The heart of Suzuki’s objections concerned Leffert’s formula for computing purported minimum rollover safety margins for short-wheelbased vehicles such as the J-l and J-2.
The record on appeal is not entirely clear as to the district court’s exact rulings regarding these two motions. The Court of Appeals concluded, however, that the district court had issued an order in limine prohibiting certain Allen evidence, e.g., Leffert’s formula but then permitted the prohibited evidence at trial. Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. The record discloses that significant amounts of Allen’s information concerning Leffert’s report, including Leffert’s formula, were presented to the juiy at trial.
After 15 days of trial in which 22 witnesses testified, Griffin dismissed all of the claims against American Suzuki Motors Corporation. The juiy rendered a liability verdict, allocating 70% of the responsibility to Wendy and 30% to Suzuld. The parties stipulated to Latasha’s past and future economic and noñeconomic damages. This resulted in a final judgment for Latasha against Suzuld in the amount of $2,700,438.63.
ANALYSIS
Standard of Review
The Court of Appeals agreed with Griffin and determined its standard of review for the two evidentiary-based issues on appeal was abuse of discretion citing, among other cases, Floyd v. General Motors Corp., 25 Kan. App. 2d 71, 72-75, 960 P.2d 763, rev. denied 264 Kan. 821 (1998), and DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372, 373-74, 16 P.3d 986 (2000), rev. denied 271 Kan. 1036 (2001). We disagree with this reliance and the Court of Appeals’ conclusion in the instant case. For the reasons set forth below, we agree with Suzuki and hold that our review is de novo.
At the outset, we observe there is no dispute that the evidence at issue is relevant, our threshold consideration when examining appellate challenges to a district court’s admission of evidence. See State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). Generally, all relevant evidence is admissible. K.S.A. 60-407(f); State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004).
Although the evidence is relevant, “overriding considerations of policy,” e.g., Kansas statutes, may require its exclusion. See City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005) (citing 4 Gard & Casad’s Kansas C. Civ. Proc. 4th Annot. § 60-407 [2003]) (the trier of fact should have all of the relevant evidence which is offered unless some overriding consideration of policy or expediency requires its exclusion). Suzuki argues that the statute, K.S.A. 60-3307, absolutely requires exclusion from evidence the J-2 vehicle and certain of Leffert’s information. In other words, there is no room for judicial discretion.
Accordingly, we must interpret this statute. The interpretation of a statute is a question of law, and this court’s review is unlimited. An appellate court is not bound by the district court’s interpretation. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (interpretation of the evidentiary statute K.S.A. 22-3220 is a question of law).
Additionally, if we conclude the evidence is excluded by statute, the district court is generally prohibited from admitting it, i.e., there is no discretion to admit. In Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 869 P.2d 598 (1994), this court held that per K.S.A. 60-452 and 60-453, offers and acceptances of settlements are generally inadmissible and the “admission of the evidence of settlement was not within the discretion permitted a trial court.” 254 Kan. at 720-24; K.S.A. 60-454 (evidence of liability insurance inadmissible to prove negligence or other wrongdoing); see also Huxol v. Nickell, 205 Kan. 718, Syl. ¶ 2, 473 P.2d 90 (1970) (Under K.S.A. 60-451, evidence of subsequent remedial conduct inadmissible to prove negligence or culpable conduct in connection with specific event.).
Finally, “we have observed that even abuse of discretion standards can sometimés more accurately be characterized as questions of law requiring de novo review.” State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). There, we cited, among other things, Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996), which stated:
“Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse.of discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it malees an error of law. . . . The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”
Accord Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 779, 89 P.3d 908 (2004) (abuse is found when district court has gone outside the framework of statutory limitations).
Discussion
Issue 1: Did the district court admit evidence in violation of KS.A. 60-3307(a)(2) because it allowed the J-2 vehicle (Vitara) as a reasonable alternative design to the J-l vehicle (Sidekick)?
Our analysis begins with the statute. K.S.A. 60-3307 provides:
“(a) In a product liability claim, the following evidence shall not be admissible for any purpose:
(1) Evidence of any advancements or changes in technical or other knowledge or techniques, in design theory or philosophy, in manufacturing or testing knowledge, techniques or processes in labeling, warning of risk or hazards, instructions for the use of such product, if such advancements or changes have been made, learned or placed into common use subsequent to the time the product in issue was designed, formulated, tested, manufactured or sold by the manufacturer; and
(2) evidence of any changes made in the designing, planning, formulating, testing, preparing, manufacturing, packaging, warnings, labeling or instructing for use of, or with regard to, the product in issue, or any similar product, which changes were made subsequent to the time the product in issue was designed, formulated, tested, manufactured or sold by the manufacturer.
“(b) This section does not require the exclusion of evidence of a subsequent measure if offered to impeach a witness for the manufacturer or seller of a product who has expressly denied the feasibility of such a measure.” (Emphasis added.)
To help prove Griffin’s theory of liability of the J-l’s (1994 Sidekick) dangerous and defective design, she intended to place in evidence the J-2 as her reasonable alternative design.- Evidence of a reasonable alternative design in products liability litigation is allowed in Kansas. As this court stated in Delaney v. Deere and Co., 268 Kan. 769, 772-73, 999 P.2d 930 (2000):
“[W]hile the final test is one of consumer expectations, ‘in a products liability case involving a claimed design defect, the parties . . . may present evidence as to . . . the feasibility of a safer design. Likewise, evidence may be introduced as to the importance of the need or needs served by the product and its design, the technical and economic feasibility and practicability of serving those needs with a safer design, and the availability of other products, if any, to serve the same needs.’ [Citation omitted.]”
Suzuki argues that the J-2 evidence is prohibited by K.S.A. 60-3307(a)(2) as italicized above. Consequently, on March 27, 2002, Suzuki filed a motion in limine to exclude all references “to the new design of the Chevrolet Tracker and the Suzuki Vitara introduced in the 1999 model year, also referred to as the J-2 vehicle, which succeeded the J-1 Geo Tracker and Suzuki Sidekick, sold in various configurations between the 1989-1998 model years.” In support of its motion, Suzuki made allegations in support of its apparent argument that the changes from the J-1 to the J-2 were design changes, e.g., subsequent remedial measures which were inadmissible. It stated in relevant part:
“3. It is anticipated that plaintiffs will attempt to suggest that design changes made to the J-2 Chevrolet Tracker and the Suzuki Vitara are admissible in this action as a subsequent remedial measure.
“4. It is also anticipated that plaintiffs will attempt to admit and discuss in front of the jury rollover testing of a J-2 Vitara conducted in 2001 by their expert John Marcosky as an attempted comparison of its performance to that of the 1994 four-door Sidekick.
“5. As a general rule, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct. K.S.A. 60-3307(a)(2); K.S.A. 60-451; Floyd v. General Motors Corp., 25 Kan. App. 2d 71, 74-75, 960 P.2d 763 (1998); Patton v. Hutchinson Wil-Rich Manufacturing Co., 253 Kan. 741, 758-759, 861 P.2d 1299 (1993). Indeed in Kansas product liability litigation, evidence of subsequent remedial measures ‘shall not be admissible for any purpose,’ with the only exception being to impeach the testimony of a witness for the manufacturer or seller who has expressly denied the feasibility of the proposed remedial measure. K.S.A. 60-3307(b); DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372, 376, 16 P.3d 986 (2000).
“5. [sic] Defendants do not deny the feasibility of the design changes made in the J-2 vehicles, and none of their experts is expected to deny the feasibility of tírese changes.”
Suzuki also appeared to argue that the changes were not design changes because the J-2 represented a wholly new design. Accordingly, they were irrelevant and therefore inadmissible.
“6. Also, the J-2 Suzuki Vitara and Chevrolet Tracker represent not a design change but a wholly new design. As such their new design is irrelevant to the design of the subject 1994 four-door Sidekick. (See Inoue Affidavit, Appendix Exhibit B to Defendant GM’s Motion for Summary Judgment.)
“7. Kansas courts have recognized that evidence involving other vehicles not similar to the vehicle at issue in a suit may properly be excluded as irrelevant. . . . Betts v. General Motors Corporation, 236 Kan. 108, 114, 689 P.2d 795 (1984). . . . Floyd v. General Motors Corp., 25 Kan. App. 2d 71, 72, 960 P.2d 763 (1998).
“8. Numerous jurisdictions have likewise recognized that evidence in product liability cases should be limited to models which are the same or substantially similar to the subject model. [Citations omitted.]
“9. In this case, the only similarity between the 1994 four-door Sidekick and the J-2 Suzuki Vitara is that they are both sport utility vehicles. Plaintiffs simply cannot present any evidence of substantial similarity between the two models. Apropos of plaintiffs’ claim that a defect in the 1994 four-door Sidekick led to plaintiffs’ accident, defendants note that the 1994 four-door Sidekick and J-2 Vitara have different track widths, suspensions, steering systems and other components, but that there is no evidence that any of these new design features was instituted to correct any deficiency in the handling/stability or rollover resistance of the J-l Sidekick. As such, they are not ‘substantially similar’ and any evidence relating to the J-2 Chevrolet Tracker or Suzuki Vitara is irrelevant.
“10. Plaintiffs’ attempts to refer to the new design of the J-2 Chevrolet Tracker or Suzuki Vitara are made only with one purpose in mind — to alienate the jurors from the defendants.”
Griffin responded on April 9 that K.S.A. 60-451 and 60-3307(a)(2) did not apply. She pointed out that the J-2 incorporated several of the design features that plaintiffs’ experts would testify should have been part of the original rollover resistance design, parameters, and characteristics of the J-l. As a result, the J-2 was evidence of reasonable alternative design recommended by her experts. She therefore argued that plaintiffs should not be precluded from presenting evidence of their reasonable alternative design simply because that design was incorporated in a vehicle designed and manufactured by defendants.
Griffin characterized the J-2 as “the plaintiffs’ ‘go to’ vehicle with regard to rollover resistance design, parameters, characteristics and performance.” She specifically argued K.S.A. 60-451, i.e., subsequent remedial conduct, did not apply because Suzuki’s witnesses had testified that the change was not remedial, but a “wholly new design.”
Moreover, according to Griffin, K.S.A. 60-3307(a)(2) did not render the J-2 evidence inadmissible since Suzuki admitted that the J-2 represents not “a design change, but a wholly new design” and that the J-l and J-2 are not substantially similar. As a result, under the statute, the J-2 was not “evidence of any changes made in designing . . . the product in issue, or any similar product . ... ” She argued that defendants could not have it both ways, i.e., could not assert in their pleadings that the J-2 is not the product in issue and is not a similar product, and still assert that Griffin’s J-2 evidence is inadmissible pursuant to K.S.A. 60-3307.
At the April 10 hearing on the motion, Suzuki clarified that it was arguing in the alternative. It claimed that Griffin either had to prove that the J-l and J-2 vehicles were substantially similar, in which case 60-3307 barred the evidence of the J-2, or, if Griffin could not show that the vehicles were substantially similar, then the J-2 evidence was not relevant.
Griffin responded that Suzuki had to be held to its pleadings where it stated that the J-2 was not the product in issue or a similar product; that the J-2 does not incorporate design changes, but is a wholly new design; and that there is no evidence of substantial similarity between the J-l and the J-2.
The district court ruled at the April 10 hearing:
“I put a lot of thought and a lot of research into this. And, quite frankly, folks, this Court feels that the main contingent in this matter is that the go-to vehicle is a vehicle, and that was produced by and manufactured by the defendants.
“So, I do consider that, or would this argument be going on if this was GM or Chrysler or Ford or someone in that regard?
“Statute is very clear. Is it the product in question? It’s been specifically denied. And the defendant — and the plaintiff is not saying that it is, and the defendant has stated that it’s a wholly different vehicle.
“Is it similar? Again, it’s a wholly different vehicle. And the Court feels that the plaintiff has the right and opportunity, as the case law would dictate, that they have the right to present a reasonable alternative design.
“This Court has not heard that information as to — and believes that to be a question of fact for the jury as to whether or not that is a reasonable alternative design.
“But for those reasons, and a literal reading of 60-3307(a)(2), this Court will deny the motion in limine in that regard.” (Emphasis added.)
On April 25, 2002, Suzuki then filed a motion to reconsider the denial of its motion in limine. It continued to argue that the J-l and J-2 are “similar products” under 60-3307 and therefore the J-2 evidence should be excluded. As support it stated: “The Sidekick design was 10 years old, so Suzuki replaced the Sidekick with a new, second generation design — the Vitara. It is not the same vehicle, but it is a new design for Suzuki’s small SUV product, i.e., a similar product.”
Suzuki attached to its motion a deposition excerpt from a Suzuki representative, Masatoshi Nakamura, who testified that the “J-l is a first generation Tracker and Sidekick.” He also testified that the J-2 is “a second generation Tracker and the Vitara.” As in Suzuki’s initial motion in limine, it again referenced the affidavit from Suzuki engineer Yoshihisa Inoue.
Griffin responded that defendant’s arguments did not change the basic fact — the J-2 is evidence of a vehicle that incorporates plaintiffs’ reasonable alternative design (“go-to” vehicle) and is not evidence of a design change in the J-l, but rather is a wholly new design.
At the April 26 hearing on the motion to reconsider, Suzuki also argued that excluding its J-2 did not prohibit plaintiffs’ experts from asserting an alternative design. Rather, the experts simply could not use Suzuki’s J-2 as the alternative design to Suzuki’s J-l Sidekick. It also emphasized that Suzuki’s substantial improvements and changes did not detract from the fact that the J-2 was simply the second generation of the J-l and became Suzuki’s successor small SUV.
After hearing oral arguments on the motion to reconsider, the district court appeared to clarify its earlier ruling. It stated it was not relying upon similarity/dissimilarity. Rather, 60-3307 did not exclude evidence of the J-2 because the J-2 was not a change in the J-l, but was “a wholly new design.”
“Court again knows that this is a very sensitive issue in this case, and as such, has delved and given it quite a little bit of time. Folks, I’ve reviewed the material from the last hearing, the case law, and, or course, the motion of the defendant in this case, which was very informative. But the Court’s opinion does not change.
“The Court did not make this determination [of J-2’s admissibility] on finding that the Tracker or the Vitara are not similar vehicles. The Court made this decision in applying 60-3307(a)(2) to the facts in this case.
“The facts in this case are that, defendants have alleged that, one, this was not a change in design; and, two, is not a similar vehicle, but, again, a toholly different design, not an upgrade, not an alteration, not a design change, or planning, or formulating, testing preparing, manufacturing, all of those things, it is not a change in any of that, it’s a wholly new design.
“As such, based upon that, this Court has found, and will still find, that 60-3307(a)(2) has its place, but it’s not in this case. The facts do not — that have been presented to this Court are different than the facts and the inadmissible evidence that is considered and should be kept out of 60-3307(a)(2).
“The reason being — again, I’ll be very clear, this is not evidence of a design change, and it’s a wholly new design. Court will find that 60-3307(a)(2), for those reasons, is not applicable. Evidence comes in.” (Emphasis added.)
On May 2, 2002, — 5 days before trial began — Suzuki filed a brief in support of its evidentiary objections regarding the J-2. It argued that because the court had twice ruled the evidence of the J-2 was admissible because it was a wholly new design and therefore not similar to the J-l, then the evidence consequently had to be irrelevant to whether the J-l had been defectively designed. In short, it renewed its alternative position from the original motion in limine. It again cited the Yoshihisa Inoue affidavit to argue the J-2 was dissimilar.
The court denied the requested relief, essentially concluding that the designs of the two vehicles were wholly different; that they therefore did not constitute changes; and that as a result the J-2 evidence was not excluded by 60-3307.
Accordingly, at trial the jury heard testimony from yet another Suzuki representative, engineer Eiji Mochizuki, during Griffin’s case in chief. He testified through a translator that the J-2 vehicle is a completely new design. The J-l had a truck-like ride with a four-passenger capacity, while the J-2 had a five-passenger capacity and was developed to be like a passenger car with a powerful engine, a good ride, and quiet operation.
The Court of Appeals held the admission of the J-2 evidence was reversible error. In doing so, it focused on the similarities between the J-1 and the J-2, concluding that “[a]mple evidence of product similarity was presented at trial.” Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed Februaiy 27, 2004. It then described in some detail the similarities between the vehicles. The court seemingly rejected Griffin’s argument that the statements in Suzuki’s motions were counsel’s binding admissions and also that any error was invited by Suzuki.
We disagree with this approach because the determination of a “wholly different design” was a prehminary finding of fact necessary to an evidentiary ruling made by the district court; searching the record for evidence to the contrary exceeds the scope of an appellate court’s authority, as explained below.
Before this court, Griffin continues to devote considerable effort to argue that Suzuki is conclusively bound by its statements appearing in its initial motion in limine on the issue. She argues Suzuld’s counsel made a binding admission regarding “wholly new design,” specifically by paragraphs six and nine of its motion, and strongly suggests Suzuki is estopped from arguing otherwise. She cites, among other cases, In re Estate of Carrell, 183 Kan. 491, 496, 327 P.2d 883 (1958).
Likewise, Suzuki continues to devote nearly the same considerable effort to argue the “admission” was merely an alternative pleading, suggesting it was not a fact but a legal argument.
We need not address the parties’ detailed positions regarding the effect of Suzuki’s counsel’s statements and arguments in Suzuld’s motions because the district court’s finding is supported by the pretrial affidavit of Suzuki’s Yoshihisa Inoue. His affidavit dated February 22, 2002, was referenced in Suzuki’s own motion in lim ine, as well as in its motion to reconsider, and had been provided to the district court as Exhibit F to Suzuld’s Response to Plaintiffs’ Motion to Add a Claim for Punitive Damages on March 5, 2002. It provided in relevant part:
“1. ... All of these vehicles [e.g., J1 and J2] are differently designed vehicles with different design concepts and different design programs.
“14. The J2 vehicles were designed as replacements for the J1 vehicles in part because the J1 vehicles reflected designs that were more than 10 years old. SMC designed the J2 vehicles from the ground up and incorporated new design features not found in the J1 vehicles.
“15. From an engineering and design standpoint, the J1 and J2 vehicles are substantially different. The center of gravity height, curb weight, gross vehicle weight rating, overall length, interior occupant space, cargo space, fuel tank capacity, body structure, chassis frame, suspension setting and other numerous significant design details differ between the J1 and J2 vehicles.
“16. The J1 and J2 vehicles were designed and developed at different times. There were different design concepts for the J1 and J2 vehicles, and, the J1 and J2 vehicles were developed in different design programs.” (Emphasis added.)
Because the court’s determination that the J-2 was a wholly new design is a finding of fact, it is subject to a substantial competent evidence standard. Substantial evidence is that which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). On appeal, we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. We also accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court. 275 Kan. at 320. After reviewing the Inoue affidavit, we conclude the district court’s pretrial finding is supported by substantial competent evidence.
Our affirmation of the district court’s factual finding that the J-2 was a “wholly different design,” however, merely leads us to the second major step in our analysis: Determining whether evidence of a wholly different design is excluded by K.S.A. 60-3307(a)(2). We first observe that K.S.A. 60-3307(a)(2) makes inadmissible for any purpose, “evidence of any changes made in the designing . . . of . . . the product in issue, or any similar product . . . .” (Emphasis added.) The district court’s interpretation essentially provides that a wholly different design cannot constitute any changes in the original design.
As mentioned, the interpretation of a statute is a question of law, our review is unlimited, and this court is not bound by the district court’s interpretation. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Schmidtlien Electric, Inc., v. Greathouse, 278 Kan. 810, 822, 104 P.3d 378 (2005).
Intent of the legislature is to be derived in the first place from the words used. McCraw v. City of Merriam, 271 Kan. 912, 915, 26 P.3d 689 (2001). When construing a statute, a court should give words in common usage their natural and ordinaiy meaning. Schmidtlien Electric, Inc., v. Greathouse, 278 Kan. at 822.
The face of the statute makes it clear that any change in the design of a product made after the product is designed, formulated, tested, manufactured, or sold is inadmissible for any purpose, except to meet a defendant’s denial of feasibility. As Suzuki correctly observes in its brief, Webster’s New Collegiate Dictionary (1980) defines “change” as including “to make different in some particular,” and “to replace one with another,” and “to make a shift from one to another.”
Accordingly, we hold that a “change in design” in a manufacturer’s small SUV would encompass a “wholly different design” manifested in the same manufacturer’s later generation small SUV serving as a replacement to the original — particularly when, as here, the two generations of vehicles are similar enough to render the later vehicle relevant as evidence for comparative purposes under the doctrine expressed in Betts v. General Motors Corp., 236 Kan. 108, 114, 689 P.2d 795 (1984), and Floyd v. General Motors Corp., 25 Kan. App. 2d 71, 73-74, 960 P.2d 763 (1998).
Although not necessaiy to our resolution of the issue, we observe that our holding is also consistent with the purposes of the KPLA. Similarly, without our determining that K.S.A. 60-3307(a)(1) was ambiguous, in Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 861 P.2d 1299 (1993), we discussed its purposes and some legislative history.
Patton was a product liability case involving a field cultivator. According to the Patton court, the KPLA became effective July 1, 1981, and is based on the Model Uniform Product Liability Act. Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. at 756. “The purpose of the Model Act was to consolidate all product liability actions, regardless of theory into one theory of legal liability.” 253 Kan. at 756.
K.S.A. 60-3307, however, was not passed until 1986. See Vargo, The Emperor s New Clothes: The American Law Institute Adorns a “New Cloth” for Section 402A Products Liability Design Defects — A Survey of the States Reveals a Different Weave, 26 U. Mem. L. Rev. 493, 673 (Winter 1996) (“In 1981, Kansas adopted a comprehensive Products Liability Act which severely limited consumers rights. The 1981 Act was amended several times to extend its anti-consumer aspects.”). The Patton court highlighted the following from some of the 1986 amendment’s legislative history:
“Legislative hearings on S.B. 668 (K.S.A. 1992 Supp. 60-3307) included a statement from the President of the Senate, Senator Robert V. Talkington, who supported the bill’s passage:
“ ‘I encourage the committee to support a bill which would prohibit the admission into evidence, during court proceedings, of information related to normal advancements or changes in knowledge or techniques of production, design theory, and packaging of products.
“ ‘Normal product changes are a result of the growth of knowledge and not a desire to “cover-up” design inadequacies. Passage of this measure would not mean victims of poorly designed products would be unable to seek and achieve compensation for injuries sustained from proper use of such products. What S.B. 668 would do is prevent the mere change of a product or product package being construed in court as an implicit acknowledgment that the “original” design was defective.
“ 1 urge the committee to support this bill to provide an additional element of fairness in our judicial process and encourage economic development and growth in Kansas/ Minutes of Senate Judiciary Committee, March 6, 1986, A-II.” (Emphasis added.) 253 Kan. at 758-59.
The Patton court immediately thereafter concluded:
“We believe that 60-3307 is an attempt to codify the wide variety of circumstances that may occur under the rule that excludes evidence of subsequent remedial procedures. See Wheeler v. John Deere Co., 862 F.2d 1404, 1410 n.2 (10th Cir.1988) (farm combine strict product liability case). K.S.A. 1992 Supp. 60-3307 encourages manufacturers to make their products as safe as possible, free from tire fear that remedial measures will be used adversely in later litigation. See also K.S.A. 60-451 (relating to subsequent remedial conduct). We view 60-3307 as a ‘state-of-the-art’ statute which prohibits the introduction of post-manufacture remedial measures, except as provided by 60-3307(b) (evidence allowed to impeach a witness after a manufacturer’s or seller’s express denial of the feasibility of the remedial measure). See Siruta v. Hesston Corp., 232 Kan. 654, 667, 659 P.2d 799 (1983), for our approval of the admissibility of ‘feasibility’ evidence before the enactment of 60-3307. We consider the following to be the operative language in the context of the case at bar: ‘if such advancements or changes have been made, learned or placed into common use subsequent to the time the product in issue -was . . . sold by tire manufacturer.’ K.S.A. 1992 Supp. 60-3307(a)(1).” Patton, 253 Kan. at 758-59.
The Patton court also identified die public policy contained in the KPLA, stating: “The legislature, in the KPLA, has clearly declared the public policy of the State. The policy is to limit the rights of plaintiffs to recover in product liability suits generally and to judge a product for an alleged defect only when it is first sold.” 253 Kan. at 752.
The Patton court, which addressed allegations of a farm implement manufacturer s post-sale duty to warn, also examined the negative practical consequences of accepting an argument by its plaintiff, stating:
“Well-made farm implements last a long time. Durability would be perceived by manufacturers as a negative factor if manufacturers were subjected to post-sale duties. The rule of law Patton seeks to have us adopt will stifle technology and suppress product safety development. Under Patton’s scenario, a manufacturer would befar safer to design a tnachine intended to wear out in a few years. Replacement would be required more often, and more machines, albeit inferior ones, would be sold. Pride of product design and improvement would become secondary to fear of liability. Fanners and implement manufacturers would both be losers.” 253 Kan. at 752. (Emphasis added.)
To accept Griffin’s statutory interpretation is to send a similar stifling and suppressing message to manufacturers, i.e., that their design changes should be incremental, and not extensive. In other words, there should be no wholly different designs, no wholesale innovations, and no successor generations of improved product — even though the extensive changes could be safer, and perhaps cheaper, for the consumer if introduced now. As noted in Patton, pride of product design and improvement would become secondary to fear of liability. Consumers and vehicle manufacturers would both be losers.
Accepting Griffin’s statutory interpretation also is inconsistent with our statement in Patton that “K.S.A. 1992 Supp. 60-3307 prohibits the admission: (1) of subsequent product improvements, and (2) Tor any purpose,’ not only product design improvements, but also later acquired knowledge as to warnings and hazards.” (Emphasis added.) 253 Kan. at 751. Such an interpretation is also inconsistent with the legislative history quoted there: “ ‘a bill which would prohibit the admission into evidence, during court proceedings, of information related to normal advancements or changes in . . . design theory.’ ” (Emphasis added.) 253 Kan. at 758.
As in Griffin’s pretrial arguments, she reminds us that she is merely trying to use the J-2 as her reasonable alternative design to show the J-l was in a defective condition, as is allowed by Kansas law. She argues the J-2 evidence was specifically used by her expert witness Allen to demonstrate the feasibility, adequacy, and effectiveness of his reasonable alternative design and should not be prohibited merely because it too is Suzuki’s product.
As in Suzuki’s pretrial motions, it responds that a reasonable alternative design is not required and that Griffin may utilize one as long as it is not Suzuki’s successor or replacement small SUV.
We agree with Suzuki. Griffin’s experts may still assert their alternative designs, including the same changes that may be found in the J-2. But the Kansas Legislature has precluded from evidence the fact that those designs may now be found in a subsequent Suzuki product. K.S.A. 60-3307 is clear: design changes cannot be used for any purpose except to meet a manufacturer’s allegation that the changes are not feasible. And Suzuki has never claimed lack of feasibility.
In short, allowing a manufacturer s later product to be introduced into evidence as a reasonable alternative design to the manufacturer’s original product could lead a jury to wrongly conclude the later product is substantial proof that the earlier was defective and that the later product repaired this defect with its new design. This path is contrary to the basic theme contained in 60-3307. Cf. Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. at 759 (“We believe that 60-3307 is an attempt to codify the wide variety of circumstances that may occur under the rule that excludes evidence of subsequent remedial procedures.”).
Effect of trial errors
Given the erroneous admission of the J-2 evidence, the remaining determination is whether its admission was harmless or reversible error.
K.S.A. 60-261 states in relevant part:
“No error in either the admission or the exclusion of evidence ... is ground for granting a new trial . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
This court has previously held that harmless error is that which does not prejudice the substantial rights of a party. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715 P.2d 2 (1986) (erroneous admission of evidence).
The Court of Appeals, although differing from this court on the appropriate standard of review, concluded that “the admission of this evidence constituted reversible error because of the huge role it played at trial.” Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. As the court explained:
“In opening remarks, Griffin’s counsel told the jury that ‘it was technologically and economically feasible to build, to design and build and manufacture the 1994 Suzuki Sidekick with the same rollover resistance design features as the J-2, the 1999 through 2002 Suzuki Vitara and Geo Tracker . . .’ Griffin’s expert [Allen] testified that the J-l vehicle failed the three methods for evaluating rollover resistance, while the J-2 passed two tests and there was insufficient data about the third. Allen went on at length about the differences in design safety features of the J-l and J-2. During Griffin’s closing, the jury was told that Wendy would be alive and Latasha would not be in a wheelchair had Wendy been driving a J-2 vehicle at the time of the accident.” Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004.
Allen also testified that the J-l had an unreasonably dangerous and defective rollover resistance design, which contributed to the rollover accident. He concluded that the J-l’s rollover resistance performance would have been enhanced by incorporating a wider track width, utilizing a stiffer anti-rollbar, and adding a cross brace between the left and right strut towers. Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. He also testified that in his opinion the J-2 design was a reliable alternative design as it possessed those three attributes missing in the J-l and would in his opinion minimize the vehicle’s rollover propensity. It was Allen’s opinion that had Wendy been driving a J-2 vehicle at the time of the accident, the vehicle would have maintained directional stability, would not have left the road, and would not have tipped over. Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004.
A further review of the record reveals that Griffin’s counsel told the jury that Suzuki had adopted her expert’s recommended design changes to the J-l in the design of the J-2 and reminded them that the J-2, unlike the J-l, did not roll over in its testing. Allen testified that test reports supported his opinion about the design of the Suzuki Sideldck and the alternative designs that he recommended that are incorporated in the J-2.
In short, we agree with Suzuki that Griffin encouraged the jury to conclude that by making the design changes in the J-2, Suzuki had effectively conceded that Griffin’s expert was right — that design changes in the J-l were necessary, that Suzuki had known it since before 1994 when the Sideldck had been manufactured, and that the J-2 design specifically was the fix for the alleged defects in the J-l design. We therefore conclude, like the Court of Appeals, that the error is reversible.
Issue 2: Did the district court admit evidence in violation of K S.A. 60-3307(a)(l) because it allowed testing and engineering standards not in use when the 1994 Sidekick was manufactured?
Both of Suzuki’s additional motions in hmine concerned an April 6, 1999, General Motors Corporation NAO Evaluation Report entitled “Analysis of Effects of Engineering Parameters on Field Rollover Rates’’ written by GM Engineer, Ronald L. Leffert. The first motion, Defendant’s Motion to Limit Opinions of Plaintiffs’ Expert Wade Allen, was filed March 4, 2002. It sought to prohibit Allen from testifying about any opinions formed by his reliance upon Leffert’s report.
The second motion, Defendant’s Motion in Limine to Exclude the New GM vehicle Technical Specification for Stability Margin, was filed April 1, 2002. It sought to exclude General Motors’ new vehicle Technical Specifications for Stability Margin. Griffin filed responses to both motions which were argued, along with the J-2 motion, on April 10.
The heart of Suzuki’s objections related to purported rollover resistance standards for vehicles with wheelbases less than 2,750 millimeters, e.g., the J-l and J-2. It argued that the formula which produces these standards, i.e., purported minimum rollover safety margins, was first published by Leffert in his 1999 report. Accordingly, the standards, and the formula, represented advancements or changes in technical knowledge, design theory, and testing knowledge that were learned subsequent to the time the 1994 Sidekick was sold by the manufacturer and are therefore barred by K.S.A. 60-3307(a)(1).
Griffin responded that Leffert’s analysis was admissible because it did not represent such advancements or changes. She argued that Leffert’s analysis was not new knowledge because vehicle “stability margin” had been a concept used to evaluate rollover resistance design since 1986 and that wheelbase had been considered as a parameter as early as 1983. At oral argument, Griffin further argued that Suzuki should have known that the short wheelbase enters into the stability margin formula. Griffin contended that Leffert’s analysis was “the same work applying some new data that could have been done back in the early 80’s, or it could have been done at any point in time before this vehicle wás sold in 1994.”
Griffin, however, conceded that in the early 1980’s, companies were not using wheelbase in the formula, that it was “sort of dis covered by Mr. Leffert when he reviewed all this accident data.” She argued Wade Allen simply used Leffert’s accident data and the same analysis and they came to the same conclusions.
The district court seemed to deny Suzuki’s first motion and sustain the second. It stated:
“But at this point in time, that stability margin formula that the parties informed me was adopted in April of 2002, involved a different formula that was not in existence prior to that time, that has come up with a set of numbers that didn’t exist prior to that time. That motion will be sustained as to that narrow formula at this time.” (Emphasis added.)
The apparent basis for the district court’s exclusion, as argued by Suzuki, was subsection (a)(1) of K.S.A. 60-3307, which states in relevant part:
“(a) In a product liability claim, the following evidence shall not be admissible for any purpose:
(1) Evidence of any advancements or changes in technical or other knowledge or techniques, in design theory or philosophy, in manufacturing or testing knowledge, techniques or processes in labeling, warning of risk or hazards, instructions for the use of such product, if such advancements or changes have been made, learned or placed into common use subsequent to the time the product in issue was designed, formulated, tested, manufactured or sold by the manufacturer.” (Emphasis added.)
As mentioned, the record on appeal is not entirely clear as to the district court’s exact rulings and rationale. Technical terms were used interchangeably by almost everyone at crucial times throughout the litigation, i.e., steady state reserve, safety reserve, safety margin, stability margin, steady state rollover propensity margin, rollover safety margin, minimum rollover safety margin, vehicle technical specification, short wheelbase calculation, short wheelbase rollover safety margin calculation, stability margin formula, Leffert’s formula, and “schematics of [the Leffert] formula.” These times included during the extensive April 10 pretrial hearings on the motions, after the opening statements at trial and during Allen’s direct examination. The transcript discloses that during Allen’s testimony experienced trial counsel were admittedly confused about the extent of the court’s order in limine.
The Court of Appeals concluded that the district court had issued an order in limine prohibiting certain Allen evidence, e.g., Leffert’s formula for computing minimum rollover safety margin for short wheelbased vehicles, but then permitted the prohibited evidence at trial. Regardless of the path taken, significant amounts of witness Allen’s information concerning Leffert’s Report, including Leffert’s formula, were presented to the jury at trial.
The Court of Appeals held the error was reversible. In our analysis, we will focus on the evidence that was admitted, not the paths to that admission.
Griffin’s evidence included extensive testimony by her expert witness, Allen, and Exhibits 157 and 158 entitled “Vehicle Rollover Resistance Performance Parameters.” Highly summarized, her evidence showed a “Rollover Safely Margin” calculated for the J-l and J-2 4-door vehicles. This Rollover Safety Margin was the result of subtracting each vehicle’s Maximum Lateral Acceleration from its Side Pull Ratio (which indicates how hard a person would have to corner a vehicle to get it to tip up, based on acceleration due to gravity, commonly known as G units). This calculation provided a Rollover Safety Margin of .16 for the J-l, and a Margin of .33 for the J-2. Evidence conclusively established that this particular formula had been known in the industry since the 1980’s.
Griffin’s evidence, however, also revealed use of “Leffert’s formula.” This formula consisted of dividing the figure of 1.5 by the square of a vehicle’s wheelbase. Allen testified that the formula originally was found in Leffert’s report dated April 6, 1999. Leffert’s report was listed as a reference in Allen’s expert report and was marked as Exhibit 16 which Allen discussed during his testimony.
Allen testified that in Leffert’s opinion, this formula was needed to provide a better safety evaluation for short wheelbased vehicles than that which was provided by the Rollover Safety Margin. Specifically, a larger Rollover Safety Margin was needed for vehicles with a wheelbase less than 2,750 millimeters. According to Allen, Leffert had come to this conclusion after looking at rollover statistics for short-wheelbased vehicles; Allen found this large amount of data relatively reliable.
According to Allen, the quotient resulting from the Leffert formula — as derived from the analysis done in Leffert’s report — established a minimum rollover standard for vehicles with a wheelbase less than 2,750 millimeters. He described it as a “minimum rollover safety margin” and testified that “Leffert used it in that way.” When Allen was specifically asked for his opinion concerning an adequate rollover safety margin for a vehicle with a wheelbase of less than 2,750 millimeters, he stated: “Well, Leffert gives us a formula — and his formula is 1.5 divided by the square of the wheelbase ... by itself, and then you divide that into 1.5, and he [Leffert] says that the safety margin should be greater than that number.” Allen readily agreed Leffert’s formula was a good way to analyze the Rollover Safety Margin for a short wheelbase vehicle and that “Adequate Rollover Safety Margin makes it less likely the vehicle would tip.”
When Allen used Leffert’s formula to calculate the minimum standard for a vehicle possessing the same short wheelbase as the J-1, his calculations yielded the figure of .244. As mentioned, however, according to Exhibits 157 and 158, the J-l’s actual Rollover Safety Margin was .16 — which Allen testified was “below that number that Leffert tells us should be used for this particular vehicle.” By contrast, Allen’s testimony, along with Exhibits 157 and 158, showed that the J-2’s actual Rollover Safety Margin of .33 was well above Leffert’s calculated minimum of .244. As Allen pointed out to the jury, the J-2 “more than doubled the tip up margin” of the J-l: .16 versus .33. He concluded that the J-l failed in the Rollover Margin evaluation, but that the J-2 did not.
The record establishes that before the publication of the Leffert report and formula in 1999, there was no test that purported to quantify the effect of a shorter wheelbase on rollover resistance. Clearly no minimum rollover safety margin had been defined based on a vehicle’s wheelbase.
The minimum rollover safety margin for vehicles with shorter wheelbases, as determined by the Leffert formula contained in the Leffert report, is clearly an advancement in technical testing knowledge that was learned subsequent to the time the 1994 Sidekick was sold by the manufacturer. We therefore agree with Suzuki that although Leffert’s formula was not a standard of testing in 1994, the implication was made that Suzuki was laggard and culpable in 1994 for not designing a vehicle that would pass a test that did not then exist.
Accordingly, we agree with the Court of Appeals that K.S.A. 60-3307(a)(1) prohibits such evidence. Leffert’s minimum margin, calculated by Allen to be .244, as well as evidence of Leffert’s formula, should have been excluded by the district court.
Griffin argues that Suzuki did not preserve this evidentiary error for appeal. Specifically, she claims that though the court may have granted Suzuld’s motion in limine, Suzuld made no contemporaneous objection to Allen’s testimony the morning of May 8 that the short wheelbase formula was one appropriate evaluation of the rollover stability of a short wheelbase vehicle. She cites State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003) (if a motion in limine is granted to preclude the introduction of certain evidence, the later failure to object at trial results in the issue not being preserved on appeal). While she admits that during the afternoon session on May 8 when Allen provided additional testimony concerning the short wheelbase formula that Suzuld’s counsel did object that it violated the district court’s order in limine, she complains that Suzuld did not also move to strike or request the jury to disregard such evidence. She suggests such requests are requirements for preserving the objection, citing State v. Campbell, 268 Kan. 529, 538, 997 P.2d 726 (2000).
We agree with Suzuki that we need not address Griffin’s arguments because her contemporaneous objection issue was not raised below. It does not appear in her brief to the Court of Appeals or in her petition for review setting forth the issues she wanted to argue to this court in the event her petition was granted. It appeared for the first time in her brief to this court. Raising her argument now conflicts with Supreme Court Rule 8.03(g) (2004 Kan. Ct. R. Annot. 58) and our decision in Telegram Publishing v. Kansas Dept. of Transportation, 275 Kan. 779, 794, 69 P.3d 578 (2003) (citing Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 236, 864 P.2d 674 [1993]) (Issues cannot be raised for the first time at this level.).
We also observe that Suzuki had been granted a continuing objection to the Leffert information before trial began, in conjunction with its motion in limine. Thus, Suzuki s issue was preserved for appeal. A very similar situation occurred in State v. Parker, 277 Kan. 838, 845, 89 P.3d 622 (2004), where we stated:
"Where the trial court has granted counsel’s request for a continuing objection to evidence excluded by an order in hmine, the trial court is in a position to avert error on account of die introduction of objectionable evidence. Thus, the rationale underlying the contemporaneous objection rule has been met, and the issue is preserved for appeal.”
Effect of trial errors
We also agree with the Court of Appeals that the admission of the Leffert evidence was not harmless under K.S.A. 60-261. Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. During a 3-week jury trial in which a considerable amount of conflicting, and at times confusing, engineering studies and other scientific evidence is presented by both sides, a jury could easily seize upon perceived certainties such as mathematically computed “minimum rollover standards” of safety for short wheelbased vehicles that an expert witness testifies should have been met. The jury could then just as easily conclude that when the J-l vehicle’s mathematically computed Rollover Safety Margin fell approximately 33% below these purported minimum rollover standards, the vehicle is “inadequate” and therefore unsafe. This was certainly a major tenet of Allen’s testimony.
We hold that this evidence prejudiced the substantial rights of Suzuki. See Hagedorn v. Stormont-Vail Regional Medical Center, 238 Kan. 691, 701, 715 P.2d 2 (1986).
The problem of the “mathematically inadequate” J-1 is exacerbated by the testimony and exhibits demonstrating that the J-2’s margin is not only double that of the J-l’s, but also that the J-2’s margin exceeds Leffert’s minimum standards for short wheelbased vehicles by approximately 35%. This comparison of vehicles relates back to the problem discussed in issue 1: the prejudicial use of a company’s later product to prove its predecessor was defectively designed.
The Court of Appeals is affirmed, the district court is reversed, and the case is remanded for new trial.
Allegrucci, J., dissenting.
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The opinion of the court was delivered by
Beier, J.:
Defendant Joseph “Zeke” Rupnickwas charged with three violations of K.S.A. 2004 Supp. 21-3755(b)(1)(C), felony computer crime. The jury found him guilty of lesser included misdemeanor computer trespass under K.S.A. 2004 Supp. 21-3755(d) on Counts I and II and guilty as charged on Count III. Rupnick appeals these convictions. His case was transferred from the Court of Appeals by this court pursuant to K.S.A. 20-3018(c).
Defendant worked for Harrah’s Prairie Band Casino in Mayetta from September 1997 until January 2000 and then for Harrah’s North Kansas City Casino (Harrah’s) in Missouri from February 2000 until January 2001. After leaving Harrah’s, defendant began working for the Sac & Fox Casino (Sac & Fox) in Brown County on September 24, 2001.
Before defendant came to work for Sac & Fox, the casino removed all “A” drives for floppy disks from its employee’s computers. Thereafter, if employees needed access to work-related data from floppy disks, Sac & Fox computer technicians would load the data onto the Sac & Fox computer system.
Soon after defendant started work with Sac & Fox, agent Darin Altenburg of the Kansas State Gaming Agency was told defendant had asked computer technicians Terry Koppa and Dale Lowe to download suspicious data contained on two floppy disks. Koppa and Lowe scanned the disks to check for computer viruses. During this process, they discovered the disks contained documents labeled as property of Harrah’s. The technicians also were able to determine that defendant had not created the documents. They therefore refused to download the data.
Koppa and Lowe reported their findings to their supervisor, Brenda Adkins. Adkins in turn reported the incident to her supervisor, Bill Kendrick, the general manager at Sac & Fox. After the technicians refused to download the data, they noticed that defendant began to bring his personal laptop computer to Sac & Fox.
Altenburg interviewed Adkins about the incident. Adkins told the agent that defendant had also come to her with a black binder containing Harrah’s accounting procedures, accounting checklists, policies, and other documents and forms. Adkins said defendant told her to look at the binder and make copies of anything she could use. Altenburg did not know whether the documents contained in the notebook were marked confidential.
Kendrick told Altenburg defendant had said Sac & Fox could benefit from the use of some of Harrah’s internal controls. Defendant then passed out copies of Harrah’s internal controls to all Sac & Fox department heads. Defendant also showed Kendrick a copy of a confidentiality agreement he had signed at Harrah’s and suggested Sac & Fox institute a similar agreement.
The confidentiality agreement defendant had signed at Harrah’s contained the following statements:
“I agree that any work, invention, innovation, idea or report that I produce in connection with my work for the Company, or which results from or is suggested by the work I do for or on behalf of the Company is a ‘work for hire,’ and will be the sole property of the Company.
“I will not at any time, directly or indirectly, either during my employment or for two years thereafter, disclose to any person, corporation or other entity which offers any product or service which is, in any way, in competition with any product or service offered by the Company, or use in competition with the Company, any of the Company’s confidential or proprietary information.
“Upon the termination of my employment for any reason whatsoever, I will promptly deliver to the Company all documents, computer software, files, databases, drawings, prints, prototypes, models, manuals, letters, lists, notes, notebooks, reports and copies thereof, whether prepared by me or others, all other material of a secret, confidential or proprietary nature relating to the Company’s business, and any other document relating or referring to such material.”'
Altenburg interviewed defendant at Sac & Fox. When Altenburg and another agent, Randy Evans, approached defendant, defendant requested that they speak in defendant’s office. Defendant also requested that the agents close the door. Altenburg noticed that a laptop was on defendant’s desk; the laptop was connected to a printer, and the printer was printing documents.
Altenburg informed defendant that he and Evans were conducting an investigation. Defendant responded, “Oh, yeah. I heard from somebody that you were investigating me.”
When questioned about the computer disks given to the technicians, defendant said he did not have any disks containing Harrah’s information. Defendant also maintained that he had not asked the technicians to install such information on the Sac & Fox system. Defendant said he had asked the technicians to install a compact disk containing only minimum internal controls for Indian gaming, which are available to the public on the gaming agency’s website. Defendant continued to deny requesting the Installation of Harrah’s information after Altenburg said he had spoken to the computer technicians personally. Altenburg then asked specifically whether defendant had given the technicians two floppy disks to install. Defendant said he had given them a couple of disks, but the technicians refused to install the data they contained. Defendant stated the technicians told him “it would be an electronic crime or something.” When asked why it would be an electronic crime, defendant responded, “I don’t know. Something about it was illegal for me to have these disks.”
Altenburg then returned to the topic of the information contained on the two disks. Defendant responded that the disks contained information he received while working for Harrah’s, including policies and procedures and operation plans. Defendant also stated that he helped design the minimum internal controls and that he had maintained copies of those documents at his personal residence. Altenburg asked defendant if he remembered signing a confidentiality agreement with Harrah’s. Defendant said he did not remember signing such an agreement.
Altenburg then asked defendant if there was any proprietary information belonging to Harrah’s on the laptop in defendant’s office. Defendant responded, “I’m not going to he to you guys, I have a lot of shit on my computer from Harrah’s. I created a lot of databases when I worked for Harrah’s Prairie Band when I was the Surveillance Director, I still have all of those databases. I made them, so in my opinion, they belong to me.” When asked what “a lot of shit” meant, defendant replied, “I just have a lot of shit from Harrah’s. Some of it’s promotional shit, and some of it’s maybe stuff I shouldn’t have.”
Defendant denied Altenburg access to his laptop, stating he did not use the laptop for work purposes. He later admitted, however, that he did use it for work. When asked again, defendant again denied access to his laptop, stating there was information on the laptop that defendant did not want Altenburg to see. Altenburg left defendant’s office, contacted his superior, and decided to seize the laptop immediately. Altenburg thought the information contained on the laptop could be destroyed easily and might never be recovered if he did not act quickly.
When Altenburg returned to defendant’s office, defendant was on the telephone with an attorney for the casino. Defendant informed the attorney that the agents wanted to take the laptop. The attorney asked why, and defendant responded, “Well, I have stuff from Harrah’s on it.” The attorney asked, “You have stuff from Harrah’s on your personal laptop?” Defendant responded, “I have a lot of shit from Harrah’s on my laptop. I have a lot of numbers and everything else.”
At that point, Altenburg seized the computer, two compact disks, and a floppy disk, which was not one of the floppy disks defendant had given to the technicians. The laptop was transported to Shawnee County. Altenburg obtained a search warrant to search the contents of the laptop from a magistrate judge who is a resident of Wabaunsee County, and the search warrant was executed in Shaw nee County. Captain Gaylon Thompson of the computer crime unit in Shawnee County reported to Altenburg that he retrieved several dozen documents proprietary to Harrah’s from defendant’s laptop. The two compact disks and the floppy disk seized with the laptop did not contain information from Harrah’s.
The director of finance at Harrah’s testified at Rupnick’s trial that two of the documents found on the laptop were confidential and that Rupnick would not be allowed to leave Harrah’s with similar documents in his possession if his employment were terminated, even if he had created the documents originally. A Harrah’s controller testified that player lists and financial information found on defendant’s laptop were confidential. This was true, she said, although the documents were not marked “confidential” or “proprietary.”
The State charged defendant with three felony counts of computer crime under K.S.A. 2004 Supp. 21-3755(b)(1)(C). Counts I and II were based on the information contained on each of the floppy disks given to the technicians. Count III was based on the data found on the laptop.
The defendant unsuccessfully challenged the district court’s territorial jurisdiction, claiming there was no evidence he had accessed the computer files in Kansas. Defendant also sought suppression of the statements he had made to Altenburg. The district court rejected defendant’s motion to suppress, ruling there was no evidence the statements were involuntary.
Defendant also argued that all evidence obtained from the laptop should be suppressed because the laptop was seized illegally and the search warrant was issued by a magistrate judge from a judicial district other than the one where the warrant was executed. The district judge ruled that exigent circumstances supported the seizure of the laptop; a single keystroke could have deleted evidence. The district judge also ruled that the search warrant was proper in form and that there was sufficient probable cause to support its issuance, saying there was no showing the magistrate was “anything but . . . unbiased and detached . . . when he issued” the warrant.
At trial Rupnick requested and was granted a jury instruction on the lesser included offense of misdemeanor computer trespass under K.S.A. 2004 Supp. 21-3755(d). He also requested the PIK Crim. 3d 59.64-A defense instruction, which the district judge denied.
The jury found defendant guilty of the lesser included offense of misdemeanor computer trespass on Counts I and II, and of felony computer crime on Count III.
Seizure of Laptop
Defendant argues the district judge erred in refusing to suppress evidence regarding the data on his laptop, because the laptop was seized in violation of the Fourth Amendment. Defendant asserts he did not voluntarily give the laptop to Altenburg, who had no warrant.
When reviewing a district judge’s decision on a motion to suppress evidence, we determine only whether the facts underpinning the decision were supported by substantial competent evidence; we do not reweigh the evidence. Our review of the ultimate legal conclusion drawn from the facts by the district judge is de novo. See State v. Vandervort, 276 Kan. 164, 169, 72 P.3d 925 (2003).
Rupnick is correct that the Fourth Amendment prohibits unreasonable searches and seizures, and a warrantless seizure is per se unreasonable unless it falls within a recognized exception. See State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998) (citing Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 [1967]).
The recognized exceptions to the warrant requirement for searches and seizures include consent, search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances, the emergency doctrine, inventory searches, plain view or feel, and administrative searches of closely regulated businesses. See State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003) (quoting State v. Baughman, 29 Kan. App. 2d 812, 814, 32 P.3d 199 [2001]).
Here the State argues that probable cause plus exigent circumstances existed to support seizure of the laptop, relying on State v. Platten, 225 Kan. 764, 594 P.2d 201 (1979).
In Platten, police officers conducted a warrantless entry into the defendant’s home and arrested him. They made the entry because they feared destruction of evidence from a drug buy that had just occurred in the home. As they approached the house, they heard movement inside, and the occupant refused to respond when they knocked and yelled “police officers.” Platten, 225 Kan. at 766.
The defendant filed a motion to suppress evidence seized from his person and, later, after issuance of a search warrant, from his home. The district court granted the defendant’s motion, and the State appealed.
This court was asked whether the circumstances were sufficiently urgent to permit the officers to enter a suspect’s residence to effect a felony arrest for which there was probable cause but no warrant. Platten, 225 Kan. at 767. Holding that “exigent” circumstances were required, the court enumerated the following nonexclusive factors from the Second Circuit’s opinion in United States v. Reed, 572 F.2d 412 (2d Cir. 1978), for review in deciding whether such circumstances existed:
“(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe that the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended and (6) the peaceful circumstances of the entry.” Platten, 225 Kan. at 770.
See also State v. Huff, 278 Kan. 214, 220, 92 P.3d 604 (2004) (employing the Reed factors); State v. Weas, 26 Kan. App. 2d 598, 601, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000). Although “the possible loss or destruction of evidence” was not an enumerated Reed factor, this court said that such loss or destruction also was to be considered in examining whether exigent circumstances existed at the time of a seizure or search. See Platten, 225 Kan. at 770.
On the facts of Platten, despite the officers’ fear of evidence destruction, the court ultimately concluded that exigent circumstances did not exist; it therefore upheld the district court’s decision to suppress the evidence seized. Platten, 225 Kan. at 770-71. The court emphasized that the burden of proof had been upon the State to prove the legality of the arrest at issue there and observed that the State had failed to meet that burden. Platten, 225 Kan. at 771.
In this case, given defendant’s admissions to Altenburg about the data contained on the laptop’s hard drive, we have no trouble concluding there was a clear showing of probable cause to seize the laptop, the third of the Reed factors to be considered in determining whether probable cause plus exigent circumstances justified a warrantless seizure. The only other relevant factor among those enumerated in Reed is the agents’ peaceful entry into defendant’s office, where they observed the laptop; defendant invited the agents into his office, so this factor also cuts in favor of the State. Finally, as Platten instructs, we also consider the potential for destruction of evidence. As the district judge alluded to in his remarks at the time defendant’s motion to suppress was decided, at a minimum a keystroke or two could have eliminated all of the laptop’s incriminating data, or made it more difficult to reconstruct.
Under these circumstances, we hold that the warrantless seizure of defendant’s computer was excused by the exception for probable cause plus exigent circumstances. The district court correctly denied defendant’s motion to suppress the evidence from the laptop, insofar as the motion was based on this seizure.
Necessity of Warrant for Search of Laptop’s Hard Drive
On his motion to suppress and again on appeal, defendant further asserts that a valid warrant was required to permit the search of his laptop’s hard drive. Because, in his view, no valid search warrant was issued or executed, the evidence from the laptop had to be suppressed.
We have not previously ruled on the threshold issue of whether a law enforcement search of the hard drive of a suspect’s personal computer requires a warrant. The Tenth Circuit has addressed the issue in at least two recent cases, and its treatment of it persuades us that a warrant is necessary for such a search unless a recognized exception applies.
In the earlier of the two cases, United States v. Carey, 172 F.3d 1268, 1273-75 (10th Cir. 1999), the defendant was arrested in connection with a drug dealing investigation. The police obtained a search warrant to search the defendant’s home. During that search, officers seized two computers they believed would contain drug dealing evidence. An investigator then obtained a search warrant to search the computers’ hard drives for evidence “pertaining to the sale and distribution of controlled substances.” Carey, 172 F.3d at 1270.
While conducting this search, the investigator encountered many computer files with sexually suggestive titles but no files related to drugs. On further examination, the investigator discerned that the files with suggestive titles contained child pornography, and he spent the next 5 hours accessing them. The defendant ultimately was charged with possession of child pornography. Carey, 172 F.3d at 1270.
The defendant filed a motion to suppress the child pornography evidence, asserting that, “[d]espite the specificity of the search warrant, files not pertaining to the sale or distribution of controlled substances were opened and searched” in violation of the Fourth Amendment. Carey, 172 F.3d at 1272. The government invoked the plain view exception to the warrant requirement, asserting that a computer’s hard drive was similar to a file cabinet. Once the government had gained lawful access to the hard drive under the warrant authorizing a search for data related to drug dealing, it argued, law enforcement was empowered to access other files obviously containing data connected to other illegal activity. Carey, 172 F.3d at 1272.
In response to these assertions, the Tenth Circuit panel noted that the investigator had admitted he was aware, as soon as he opened the first file with a sexually suggestive title, that no others with similar titles were likely to contain data concerning drug dealing, i.e., the data he had been authorized to seek. Nevertheless, he persisted in opening and viewing the files with suggestive titles for 5 hours. In these circumstances, the panel held, the plain view exception to the warrant requirement did not apply.
“ ‘Since electronic storage is likely to contain a greater quantity and variety of information than any previous storage method, computers malee tempting targets in searches for incriminating information.’ [Citation omitted.] Relying on analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modem computer storage.’ ” Carey, 172 F.3d at 1275.
The exception for probable cause plus exigent circumstances also did not apply in Carey. The officers had already “removed the computers from [defendant’s] control .... [and] there was no ‘exigent circumstance or practical reason to permit officers to rummage through all of the stored data regardless of its relevance or its relation to the information specified in the warrant.’ ” Carey, 172 F.3d at 1275-76.
The Carey panel therefore ruled that suppression of the evidence of child pornography on the computers’ hard drives was appropriate. Carey, 172 F.3d at 1276.
In tire second Tenth Circuit case, United States v. Walser, 275 F.3d 981 (10th Cir. 2001), cert. denied 535 U.S. 1069 (2002), a hotel manager checked on an activated fire alarm in one of the hotel’s rooms and discovered two small plastic bags of drugs. The manager called the police. The defendant, who had rented the room, was found in the parking lot, and he told the police that he had set up a computer in the hotel room.
The officers obtained a search warrant for the hotel room and the defendant’s car, looking for contraband. In the hotel room, one officer searched the computer hard drive for “ledgers of drug transactions or images of drug use.” Walser, 275 F.3d at 984. The officer found files containing adult pornography and seized the computer to conduct a more thorough search at the station.
At the station, the officer examined various programs, looking for evidence of drug transactions. During this search, an image appeared on the screen that the officer believed to be child pornography. The officer immediately ceased his search and contacted an agent with more experience in computer forensics and child pornography. The agent advised the officer to obtain a search warrant “specifically authorizing a search for evidence of possession of child pornography.” Walser, 275 F.3d at 985. The officer obtained the warrant and found additional child pornography evidence; this evidence eventually was admitted at the defendant’s trial.
The defendant attempted to prevent introduction of the evidence by arguing that the officer exceeded the scope of the warrant when he first accessed a file that contained what he believed to be child pornography. The court cited Carey for the proposition that
“officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer’s hard drive. Because computers can hold so much information touching on many different areas of a person’s life, there is a greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” Walser, 275 F.3d at 986.
However, the Tenth Circuit panel was unconvinced by the defendant’s argument. It distinguished the activities of the officer in Walser from those of the officer in Carey. In Walser, the officer exercised appropriate restraint by ceasing his search immediately upon opening the first file containing what he believed to be child pornography and obtaining a new search warrant. This compared favorably with the Carey officer’s exhaustive 5-hour tour of many suspicious files. The distinction justified upholding the introduction of the Walser evidence. 275 F.3d at 987.
These cases support defendant’s argument that a valid warrant is necessary to search the hard drive of a suspect’s personal computer.
In her dissent, the Chief Justice attempts to minimize the persuasive force of Carey and Walser, primarily by focusing on their factual scenarios. This effort ultimately fails. If, as these cases state, law enforcement is not permitted to expand a warrant-supported search of a computer’s hard drive beyond its original scope absent a valid exception to the warrant requirement, then a warrant is normally required for any search of a computer hard drive. See Walser, 275 F.3d at 986-87; Carey, 172 F.3d at 1273. The general rule cannot be otherwise, given the specific corollary guiding these Tenth Circuit decisions.
In any event, the dissent’s extended discussion of whether a warrant is normally required for a search of a computer hard drive is sound and fury signifying little. The Chief Justice ultimately agrees that a warrant must be obtained before such a search is conducted, unless an exception to the warrant requirement applies. We adopt this rule for Kansas; she would do likewise.
In this case, a warrant was obtained. This was appropriate because any exigency evaporated once defendant’s laptop was properly seized. The issue then becomes whether the warrant was valid, allowing law enforcement to conduct a search of the laptop’s hard drive for incriminating data.
Validity of Search Warrant
Defendant contends the warrant in this case violated K.S.A. 22-2503. Because this claim requires interpretation of a statute, it raises a question of law reviewable de novo by this court. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 22-2503 reads: “Search warrants issued by a district magistrate judge may be executed only within the judicial district in which said judge resides or within the judicial district to which said judge has been assigned pursuant to K.S.A. 20-319.’’ (Emphasis added.) K.S.A. 2004 Supp. 20-319 outlines the duties of the departmental justices of our court, including assignment of district judges and district magistrate judges under certain circumstances not applicable here. Thus, in order to comply with the plain language of K.S.A. 22-2503, the search warrant in this case had to be executed in the judicial district in which the magistrate judge was residing. This did not occur. The warrant was executed, i.e., the search of the computers’ hard drive was conducted, in Shawnee County in the Third Judicial District, where the laptop had been taken after it was seized from defendant’s office. The magistrate who issued the warrant was living in Wabaunsee County in the Second Judicial District.
The State characterizes this failure to comply with K.S.A. 22-2503 as a mere “technical irregularity,” relying on the following language from K.S.A. 22-2511: “No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”
We have said that courts prefer “searches conducted under the authority of warrants to those conducted without the benefit thereof’ and therefore “warrants and their supporting affidavits are [to be] interpreted in a common sense, rather than a hypertechnical, fashion,” State v. Lefort, 248 Kan. 332, 335-36, 806 P.2d 986 (1991), but the problem here goes well beyond the merely technical. The label of “technical irregularity” has been reserved for considerably less serious problems in the past. See, e.g., State v. Collier, 259 Kan. 346, 367-68, 913 P.2d 597 (1996) (absence of judge’s signature on warrant); Lefort, 248 Kan. at 337 (warrant failed to include town name but officer familiar with place to be searched). In this instance, the language of K.S.A. 22-2503 could not be more clear or more clearly mandatoiy. A search warrant issued by this magistrate could only be executed in the Second Judicial District.
Our view is further supported by the history of K.S.A. 22-2503. The predecessor to that provision — K. S .A. 62-1830 (Corrick 1964) — read:
“A warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for and seized and naming or describing the person, place or means of conveyance to be searched. The warrant shall be directed to any peace officer of the state of Kansas, or one of its governmental subdivisions who is authorized to enforce or assist in enforcing any law thereof. It shall state tire grounds for its issuance, and shall command the officer to search the person, place, thing, or means of conveyance named for the property specified, and to seize such property and hold the same in accordance with the law.”
In short, under the previous enactment, “a search warrant issued by a magistrate within the confines of his jurisdiction [could] be served anywhere within the state of Kansas.” State v. Lamb, 209 Kan. 453, 469, 497 P.2d 275 (1972).
The legislature adopted the current wording of K.S.A. 22-2503 in 1979. L. 1979, ch. 96, sec. 1. “ ‘When tire legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.’ [Citation omitted.]” State v. Gordon, 275 Kan. 393, 405, 66 P.3d 903 (2003). The new statute narrowed the geographical reach of warrants issued by district magistrate judges in Kansas. With no evidence to the contrary, we presume this new restriction on magistrate judge’s power was intentional.
Finally, we also observe that “[c]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001). We regard this case as an appropriate one for application of this general rule of lenity. See State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). Our interpretation of the plain language of 22-2503 is not only reasonable and sensible; it is virtually inescapable.
We hold that the search warrant was invalid and could not support the search conducted on defendant’s laptop. Its execution outside the jurisdiction designated by the statute was not a mere technical irregularity. It affected the substantial rights of the defendant, enabling his conviction on a felony. The evidence from the laptop should have been suppressed by the district judge, whose observation that there was no evidence the magistrate was anything other than fair and unbiased placed the suppression burden on the wrong party and missed tire point of defendant’s argument. Defendant’s conviction of felony computer crime on Count III must be reversed and the case remanded for further proceedings on that charge.
Before leaving this point, we must again pause briefly to respond to the Chief Justice’s dissent.
The dissent characterizes the search of the hard drive of Rupnick’s laptop as “reasonable” because of the defendant’s incriminating statements. Certainly these statements did not constitute consent, and there is no general “reasonableness” exception to the warrant requirement, either under Kansas or federal precedent. See State v. Baughman, 29 Kan. App. 2d 812, 814-15, 32 P.3d 199 (2001) (enumerating warrant exceptions and noting aversion to “wild card of general reasonableness”). We decline to adopt a general reasonableness exception in this case.
In addition, as noted above, a computer is not truly analogous to a simple closed container or conventional file cabinet, even a locked one. Rather, it is the digital equivalent of its owner’s home, capable of holding a universe of private information. Further, a computer’s outward appearance, unlike the containers dealt with in at least some of the cases cited by the dissent, tells the observer nothing about the content or character of the information or potential evidence contained on its hard drive. In the circumstances of this case, we cannot agree with the dissent’s casual willingness to treat the defendant’s statements as a blanket waiver of his reasonable expectation of privacy or his implied consent to law enforcement’s unlimited access to his laptop’s hard drive.
Vagueness of Felony Statute
Defendant argues that the words “modifying,” “altering,” and “copying,” as used in the definition of felony computer crime in K.S.A. 2004 Supp. 21-3755(b)(1)(C), are unconstitutionally vague. Specifically, he asserts that the “technology of the computer environment is so confusing to the lay person that, without definitions, common people do not understand . . . what constitutes a 'crime’ under this statute.”
Although we have held above that defendant’s conviction for felony computer crime must be reversed because of the invalidity of the search warrant, we address this constitutional claim because of the potential for it to arise if retrial of that charge is attempted.
K.S.A. 2004 Supp. 21-3755(b)(1)(C) defines computer crime as “intentionally exceeding the limits of authorization and damaging, modifying, altering, destroying, copying, disclosing or taking possession of a computer, computer system, computer network or any other property.” “Modifying,” “altering,” and “copying” are not included in the subsection of the statute devoted to defining its terms. See K.S.A. 21-3755(a)(1)-(10).
“Whether a statute is unconstitutionally vague is a question of law over which appellate review is de novo and unlimited.” State v. Armstrong, 276 Kan. 819, Syl. ¶ 1, 80 P.3d 378 (2003).
“The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.” [Citation omitted.]
“In construing a statute, ordinary words are given their ordinary meaning. [Citation omitted].
“We use a two-part test to determine whether a statute is unconstitutionally vague. First, we consider whether the statute ‘conveys a sufficiently definite warning’ of the proscribed conduct ‘when measured by common understanding and practice.’ [Citation omitted.] Next, we consider ‘whether the [statute] adequately guards against arbitrary and discriminatory enforcement.’ [Citations omitted.] The second part of the test embodies the ‘requirement that a legislature establish minimal guidelines to govern law enforcement.’ [Citation omitted.]
“As the United States Supreme Court explained in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972):
‘First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’
“A party challenging a statute’s constitutionality bears a high burden, but we must remember that ‘the standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.’ [Citations omitted.]” Armstrong, 276 Kan. at 821-22.
Having reviewed the governing legal standards, we turn first to a determination of whether the words “modifying,” “altering,” and “copying,” when given their ordinary meanings, convey sufficiently definite warnings of the conduct proscribed by the statute.
Webster’s II New Riverside University Dictionary 762 (1988) defines “modify” as “[t]o change in form or character: ALTER.” Defendant argues that, as used in this case, modification of an electronically stored document included merely accessing it. This argument ignores ample evidence that defendant went far beyond accessing Harrah’s documents and data.
“Alter” is defined by the same dictionary as “[t]o make different: MODIFY.” Webster’s II New Riverside University Dictionary 96 (1988). Defendant does not specifically address the definition of “alter” in his brief.
“Copy” is defined in the same dictionary as “[t]o malee a copy of’ or “[t]o follow as a model or pattern: IMITATE.” Webster’s II New Riverside University Dictionary 310 (1988). Defendant complains that the statute does not differentiate between copying an entire electronically stored document or cutting and pasting portions of the document into a new document. He is correct that the statute makes no distinction. In fact, it does not speak to copying of “documents” at all, but to copying of “a computer, computer system, computer network or any other property.” K.S.A. 2004 Supp. 21-3755(b)(1)(C).
In this case, defendant used portions of the original text of Harrah’s electronically generated and/or stored information, i.e., its property, in new documents made to look as though they were authored by him and specific to Sac & Fox. He may have accomplished this in one or more of several ways. Defendant may have picked up all or part of the of the original text and placed it into a new document; he may have read the original text and typed it into a new document; or he may have committed the original text to memory and typed it into a new document. But, any of these methods would have qualified as “modifying,” “altering,” or “copying,” as those words are ordinarily used. The issue is not how much of the original was changed or duplicated but whether the original was changed or duplicated at all. We are satisfied that these three words conveyed a “sufficiently definite warning” of the conduct proscribed, even in the electronic context, “when measured by common understanding and practice.”
We are also called upon to evaluate whether the statute adequately guards against arbitrary and discriminatory enforcement. Again, we disagree with defendant that the absence of statutory definitions of “modifying,” “altering,” or “copying” makes it “impossible for one to know what is meant.” On the contrary, these words have accepted ordinary meanings that are far from completely undone by the advent of computer technology. Both potential violators and potential enforcers of the law should know what to expect and demand. The legislature has established minimal guidelines to govern law enforcement. The statute does not impermissibly delegate basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis.
At the conclusion of his briefs discussion of this issue, defendant also makes a passing reference to alleged ex post facto application of the statute to his case. He cites no supporting authority. “Simply pressing a point without pertinent authority ... is akin to failing to brief an issue;” where a defendant fails to brief an issue, that issue is deemed waived or abandoned. State v. Gleason, 277 Kan. 624, 655, 88 P.3d 218 (2004) (citing McCain Foods USA, Inc., v. Central Processors, Inc., 275 Kan. 1, 61 P.3d 68 [2002]).
Vagueness of Misdemeanor Statute
Defendant also challenges the misdemeanor computer trespass statute, K.S.A. 2004 Supp. 21-3755(d), as unconstitutionally vague. Defendant’s two misdemeanor convictions were based on the two floppy disks he gave to Sac & Fox computer technicians. The technicians had returned these disks to defendant after refusing to download the data they contained. They were never found or introduced into evidence.
K.S.A. 2004 Supp. 21-3755(d) reads in pertinent part: “Computer trespass is intentionally, and without authorization accessing or attempting to access any computer, computer system, computer network or computer software, program, documentation, data or property contained in any computer, computer system or computer network.”
In particular, defendant complains that the words “accessing or attempting to access” are so vague that persons of common intelligence must guess at their meaning. Unlike the three words in the felony statute with which defendant took issue above, “access” is defined in K.S.A. 2004 Supp. 21-3755(a)(1). According to that provision, “access” means “to instruct, communicate with, store data in, retrieve data from or otherwise make use of any resources of a computer, computer system or computer network.” K.S.A. 2004 Supp. 21-3755(a)(1).
Especially given the legislature’s care in including a definition, we hold that this statute also survives our two-part test for vagueness. The statute defines the questioned term in a way that gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited; it also provides explicit standards for law enforcement to apply. In this particular case, sufficient testimony supported the State’s version of events, i.e., that defendant intentionally and without authorization attempted to “access” or “retrieve data from” the disks by having the computer technicians download the data to the Sac & Fox computer system. Testimony also supported a reasonable inference that the data on the disks had come from Harrah’s and that defendant was no longer authorized to use it.
Admission of Incriminating Statements
Defendant also argues that the statements he made to Altenburg and Evans should have been suppressed because the agents were conducting a custodial interrogation and did not give him Miranda warnings.
Our standard of review on this issue regarding the district court’s denial of defendant’s motion to suppress is identical to that recited above in relation to seizure of his laptop.
In State v. Heath, 264 Kan. 557, 957 P.2d 449 (1998), the defendant voluntarily agreed to be transported for questioning to the police station by police car. The defendant was not restrained in any way or given the Miranda warnings. We reviewed the governing law:
“Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination. [Citation omitted.] However, an officer’s obligation to administer a Miranda warning attaches only where there has been such a restriction on the suspect’s freedom so as to render him or her in custody. [Citation omitted.]
“In determining whether an individual was in custody, the ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation omitted.] It does not matter whether the interrogating officers had focused their suspicions upon the individual being questioned if those suspicions are not disclosed to the defendant. Rather, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. [Citation omitted.] This inquiry is made on a case-by-case basis. [Citation omitted.]” Heath, 264 Kan. at 590.
Given the voluntary nature of the Heath defendant’s participation in questioning, this court ruled that he was in not custody at the time and his incriminating statements were permitted to be introduced at trial. 264 Kan. at 591.
In this case, the agents asked if they could speak with defendant. Defendant directed them to his office and voluntarily shut the door. The agents did not tell defendant that he was not free to leave or terminate the interview. Defendant called his general manager and an attorney as questioning progressed. These circumstances constitute substantial competent evidence to support the district court’s assessment of the defendant’s statements as voluntary. Further, we agree with the district court’s implicit conclusion that defendant was not in custody. A reasonable person would have felt free to leave or refuse to answer. Thus the district court’s further legal conclusion that Miranda warnings were unnecessary also was correct. See State v. James, 276 Kan. 737, 749-53, 79 P.3d 169 (2003) (explaining and applying standard of review).
Jurisdiction Under KS.A. 21-3104
Defendant also asserts the district court lacked territorial jurisdiction over the third count in the complaint, which gave rise to his felony conviction, because there was no evidence he accessed the data on the laptop in Kansas. We address this issue because of its potential to arise again on retrial of this count.
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003).
K.S.A. 21-3104 states in pertinent part:
“(1) A person is subject to prosecution and punishment under the law of this state if:
(a) He commits a crime wholly or partly within this state; or
(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or
(c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state.
“(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state.”
We hold the district court had jurisdiction to try defendant on this count. Although there was no direct evidence that defendant placed the Harrah’s data on his laptop in Kansas or accessed it there, there was circumstantial evidence to support his “intention ally exceeding the limits of authorization and damaging, modifying, altering, destroying, copying, disclosing or taking possession of a computer, computer system, computer network or any other property” in the state. Defendant admitted the laptop contained Harrah’s data, and he began using his laptop at work only after the computer technicians refused to download Harrah’s data from the two floppy disks he gave them. Defendant also admitted that he used the laptop for work purposes; and Thompson testified that a Harrah’s document not authored by defendant was accessed while defendant worked for Sac & Fox and that defendant generated an almost identical document to be circulated in Brown County.
We do not reach defendant’s challenge to the sufficiency of the evidence to convict him on the third count or his argument that he was entitled to the PIK Crim. 3d 59.64-A defense instruction, because we are reversing his felony conviction and cannot predict exactly what the evidence against him may be on any retrial.
In accord with the discussion above, the judgment of the district court is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.
Gernon, J., not participating.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Nuss, J.:
This interlocutory appeal involves property valuation in an eminent domain proceeding. In 2001, Johnson County (county) took the Smiths’ property which is not only within the city limits of Overland Park (city) but is also within 1 mile of the Johnson County Executive Airport (airport).
The county believed that the property’s zoning classification was an important factor in determining value. It therefore filed a motion in Hmine asking the district court to find that the highest and best use of the property on the date of the taking was low-density residential and to prevent the Smiths from presenting evidence that the highest and best use of the property was high-density residential.
The district court recognized that in 1989 the city had taken action to rezone from A-J (agricultural, i.e., allowing low-density residential) to R-l (single-family, i.e., high-density residential). It ruled, however, that because the county had not approved the re zoning of property within 1 mile of the airport, the property had retained its county A-J zoning classification since annexed by the city in 1985. The district court later vacated its ruling, concluding that the zoning had changed to R-l in 1989.
The county received permission from the district court to request an interlocutory appeal, and pursuant to K.S.A. 2004 Supp. 60-2102(c), the case was forwarded to the Court of Appeals which granted interlocutory status. We transferred the case, and our jurisdiction is pursuant to K.S.A. 20-3017.
The district court articulated the issue and its rationale for allowing the pursuit of an interlocutory appeal as follows:
“[T]he Court’s ruling on the zoning classification of the property at the time of the taking is a controlling question of law on which there is substantial grounds for a difference of opinion. The Court’s ruling that property was at the time of the taking zoned R-l is a conclusion of law which required consideration of K.S.A. 12-741 et seq. and K.S.A. 3-301 et seq. Because the zoning classification of the property will largely determine the just compensation, the only issue in this case, the Court finds and concludes that an immediate appeal of this Order of the Court determining zoning classification may materially advance the ultimate termination of this litigation.” (Emphasis added.)
Upon review, we conclude that the questions of (1) whether to determine the zoning classification of the taken property and, if so, (2) the actual determination of the zoning classification itself are for the jury, not an appellate court. Accordingly, we reverse and remand with directions.
FACTS
The Smiths were the owners of the 80-acre property (the north 80 acres of the Southwest Quarter of Section 15, Township 14, Range 24) which is the subject of this appeal. At the time of the property’s annexation by the city in 1985, it carried a zoning classification by the county as A-J (agricultural). The property lies within 1 mile of the airport.
In 1989, the then agent for the property, William Shafer, took steps to allow development of a single-family subdivision. Among other things, he filed an application with the city to rezone 160 acres (the entire Southwest Quarter of Section 15), including the subject property, from A-J (agricultural) to R-l (single-family residential).
On March 29, 1989, Shafer sent a letter to the county, among others, addressed “Dear Property Owner” to notify the county of a public hearing to be held on April 10 to consider Rezoning Application No. 89-11, i.e., to rezone the property from A-J to R-l for construction of single-family homes. On April 18, attorney Neil Shortlidge for the city advised City Attorney Robert Watson that although the land lay within 1 mile of the airport, rezoning would not require county approval under K.S.A. 3-307e because the rezoning would not be a change in existing city zoning: existing zoning was the county’s.
On May 15, 1989, the city council conducted a hearing on Shafer’s application to rezone. A representative of the Johnson County Airport Commission (airport commission) was present and stated that it was not opposed to Shafer’s application. The city council then voted to approve application No. 89-11 to rezone the property to R-l and adopted the accompanying Rezoning Ordinance No. Z-1946. This action was in turn approved by the mayor and approved as to form by Watson as city attorney. The Johnson County Board of County Commissioners did not formally approve this rezoning action, but neither did it appeal the decision.
In June 1991, the airport commission drafted a “Comprehensive Compatibility Plan.” Among other things, the plan identified the subject property as R-l, single-family residential with 8,000 square foot minimum lot size. It also identified this zoning as inconsistent with the airport’s future land use, e.g., Airport Rural Residential with 2-acre minimum lot size.
In 1994, the county adopted zoning and subdivision regulations and again confirmed the “base zoning” of the subject property “on the date of the adoption of these regulations” as R-l. That same year the City of Olathe approved a site plan within 1 mile of the airport based upon its own recent rezoning to R-l of property within its city limits. Later that year the county successfully sued the City of Olathe in Johnson District Court, arguing that according to K.S.A. 3-307e Olathe had failed to obtain county approval for the rezoning near the airport, even though the county had not sued the City of Overland Park when that city had made a similar rezoning of the subject property in 1989.
The Smiths acquired the property in 1998, and on June 28,1999, they filed an application with the City of Overland Park for preliminary plat approval of a single-family housing subdivision. Assistant City Attorney J. Bart Budetti advised the staff of the city’s planning department that the city’s 1989 Rezoning Ordinance No. Z-1946 had not been approved by the county. Furthermore, he advised that until such county approval of the rezoning had occurred, the city could not review or approve the preliminary plat. Instead of appealing, the Smiths withdrew their application on July 20.
Budetti later explained in a 2004 affidavit that the city had not obtained county approval “as required by statute” because the city’s planning department had not been aware of this requirement. According to him, the city had simply and erroneously changed its zoning map in 1989 to reflect the zoning change from A-J to R-l. The City Planning Director, Roger Peterson, also explained in an 2002 affidavit that the 1989 rezoning from A-J to R-l was ineffective because it had not been approved by the county as required by K.S.A. 3-307e.
Approximately 8 months after the Smiths withdrew their application, on March 8, 2000, their attorney sent a letter to the county planning office which stated in relevant part:
“Our firm represents Tom Smith, the owner of property located at 167th & Pflumm. Because the property is located within one mile of the airport, the owner is hereby requesting that the County review the matter of the existing zoning of the property and development of the area according to that zoning.
“Therefore, the City of Overland Park has provided a full copy of its file (documents enclosed) regarding the 1989 rezoning of the property to single-family residential to facilitate County’s review of this matter.”
Three months later, on June 8, 2000, apparently at the Smiths’ attorney’s request for county approval of the city’s 1989 rezoning of the 160 acres, the county considered Rezoning Application No. REZ-89-11 which had been adopted by the city in 1989. The county then passed two resolutions.
First, with Resolution No. 053-00, the county denied the zoning change from A-J to R-l for the south 414 ft. of the Southwest Quarter of Section 15 (25 acres). Among its cited reasons were “[t]he proposed development does not comply with the adopted plans for the area” and “safety concerns about residential development in an area within the flight path of the airport and also noise concerns about residential development near the airport.” Second, with Resolution No. 055-00, the county declared its intent to acquire the north half of the Southwest Quarter of Section 15 (the Smiths’ 80 acres). The Smiths never appealed these county decisions.
Once the county disapproved Smiths’ request, Assistant City Attorney Budetti advised his planning staff to remove the erroneous R-l designation on the City’s Official Zoning map. According to him, Smiths’ property maintains its county A-J zoning on the city map.
Less than a year later, on March 20, 2001, the county began an eminent domain proceeding to acquire the subject property. On May 21 of that year, the Smiths appealed from the report of the court-appointed appraisers and requested a jury trial on damages. The county took the property the next month, on June 6, approximately 1 year after the county disapproved the Smiths’ rezoning request and declared its intention to take the property.
On Januaiy 9, 2003, the county filed a motion in limine in the eminent domain appeal asking the district court to prevent the Smiths from presenting evidence that the highest and best use of the property was high-density residential. The county asked that the court instead find the highest and best use of the property was limited to low-density residential based on the county’s A-J zoning at the time of taking: June 6, 2001.
On November 13, 2003, the court granted the county’s motion, concluding that the property retained its A-J zoning classification at the time of the taking. Specifically, the court held that the 1989 rezoning to R-l by the city did not take effect because it had not been approved by the county as required by K.S.A. 3-307e. The court stated:
“There can be little question that the purpose of K.S.A. 3-307e is to allow the County to ‘veto’ any city zoning action within one mile of a county airport if the Board determines that the zoning is not in the best interests of the airport oper ations. Any decision by this Court must take into consideration the purpose of the statute. Allowing the Property to be rezoned without the express approval of the Board of County Commissioners would be contrary to the expressed legislative intent. Any doubts in the applicability of the statute must be weighed in favor of the County. Under these circumstances, the Court concludes that the zoning of the Landowners’ property remains ‘A-J.’ ”
The district court also held that to rule otherwise would allow the Smiths an improper collateral attack in the eminent domain proceeding on the validity of the county’s June 2000 rejection of the Smiths’ request for rezoning to R-l. R therefore concluded that it had no jurisdiction to hear an appeal of the county’s rezoning rejection.
On April 6, 2004, the Smiths filed a motion to vacate and set aside the November 2003 order. On September 18,2004, the court granted the motion and vacated its earlier order. The court held that its earlier order allowed the county to make an improper collateral attack in the eminent domain proceeding on the validity of the city’s 1989 rezoning of the properly from A-J to R-l. In effect, it held that if the county had wished to challenge the 1989 rezoning action, it had been required to appeal the rezoning decision within 30 days. See K.S.A. 12-712 (Ensley 1982) (repealed 1991); K.S.A. 12-760. In so holding, the court recognized the validity of the city’s 1989 rezoning, and concluded that the zoning had changed to R-1.
The court also determined, and the county and the Smiths agreed, that the highest and best use of the property at the time of the taking was dependent upon the zoning of property at that time; “therefore, the determination of the zoning classification is largely determinative of the market value of the property at the time of the taking, which is the only issue to be decided in this condemnation appeal.” It then approved the request of the county to proceed with an interlocutory appeal so an appellate court could determine the property’s zoning classification at the date of taking.
ANALYSIS
Issue: Should an appellate court determine a property’s zoning classification on the date of taking if the classification will largely determine the amount of just compensation?
The parties’ legal arguments
The parties make numerous arguments to support their conflicting positions about the property’s actual zoning classification at the time of the taking. For example, the Smiths argue that the city’s 1989 zoning change was essentially approved by the county through substantial compliance with statutory requirements, i.e., K.S.A. 3-307e. Among other things, they also argue their reliance and the county’s acquiescence or estoppel. They point to attorney Shortlidge’s opinion for the city in 1989 that county approval was not required for rezoning; to the airport commission’s lack of opposition to the application for rezoning in 1989; to the 1991 Comprehensive Compatibility Plan which appeared to confirm the city’s 1989 rezoning to R-l; to the city’s zoning map indicating R-l zoning for the property; and to the county’s failure to ever sue the city for its zoning change, when the county had promptly sued the City of Olathe for similar actions in 1994.
The county argues that the Smiths are improperly transforming this eminent domain proceeding into a zoning appeal over which this court has no jurisdiction. It alleges that the only issue is whether a well-informed buyer would consider the land to be already zoned R-l on the date of the 2001 taking, in light of the contrary actions by the city, the county, and the Smiths themselves that in effect recognized the zoning as A-J. These actions would include Assistant City Attorney Budetti’s 1999 statements that the change to R-l on the city zoning map had been made mistakenly and that county approval of city zoning changes was required before plat approval could be considered.
Included in the parties’ arguments are allegations against each other of improper collateral attacks.
The Smiths argue that the city’s 1989 decision to change the zoning from A-J to R-l was not appealed by the county per K.S.A. 12-760, or its predecessor, K.S.A. 12-712 (Ensley 1982) (repealed 1991). Those statutes require an appeal of a planning or zoning decision to be filed within 30 days. They cite St. John v. City of Salina, 9 Kan. App. 2d 636, 684 P.2d 464, rev. denied 236 Kan. 876 (1984) for the proposition that the appeal of zoning decisions can include the “lawfulness” or “validity of enactment.” Accordingly, they claim that the county cannot collaterally attack that city decision at this late date.
Among other things, the county argues that Assistant City Attorney Budetti’s June 1999 refusal to review or approve the Smiths’ property plat was not appealed by the Smiths as an “administrative official’s decision or determination” to the Board of Zoning Appeals per K.S.A. 12-759(d) and then to the district court per K.S.A. 12-759(f). K.S.A. 12-759(d) requires an appeal be taken within a reasonable time as provided by the rules of the Board; K.S.A. 12-759(f) requires an appeal to be taken within 30 days of the final Board decision. Instead, the Smiths withdrew their application. Accordingly, the county claims that the Smiths cannot collaterally attack that city official’s decision and determination at this late date.
Similarly, the county argues that its June 8, 2000, decision to deny the Smiths’ rezoning request was not appealed by the Smiths per K.S.A. 19-223 or K.S.A. 3-709. The first statute requires an appeal to the district court of any decision of a board of county commissioners to be filed within 30 days, while the latter specifically requires an appeal to the district court within 30 days of decisions made under the provisions for airport zoning regulations. Accordingly, the county claims that the Smiths cannot collaterally attack its 2000 decision now.
The county further argues that it need not have appealed the 1989 rezoning decision by the city under K.S.A. 12-760 because K.S.A. 3-307e trumps the other statute by placing the burden on the city to then submit its rezoning decision to the county for approval. K.S.A. 3-307e provides:
“The airport commission shall act as an airport zoning commission for the county and as such shall make recommendations and serve in the same capacity as an airport zoning commission provided for in subsection (2) of K.S.A. 3-705. Said commission shall make such recommendations concerning type and boundary of zones and regulations to be adopted for public airports and all property within (1) mile thereof. The board of county commissioners shall act on such recommendations and may zone such airports and the surrounding areas within (1) mile except where such areas have already been zoned by city action. In such cases, city zoned areas shall keep such city zoning control except that any changes in existing city zoning must have the approval of the hoard of county commissioners. All airport zoning regulations adopted as provided for herein shall be administered by the airport commission, as directed by the board of county commissioners. The county commissioners shall exercise directly all the zoning authority granted by this act in the event an airport commission is not appointed or functioning.” (Emphasis added.)
The county argues that because no county approval was sought, much less received, the 1989 city rezoning was invalid.
The Smiths respond by arguing, among other things, that the county had no airport zoning regulations until 1994. Consequently, the county had no authority to approve or disapprove any city request for rezoning in 1989, and the city zoning changes are therefore valid.
We need not analyze these and other detailed arguments made by the parties. As explained below, we conclude these are matters for the juiy to consider when it deliberates on the issue of the property’s value at the time of taking, including the likely zoning classification of the property.
Discussion
The major issue in a condemnation action is the condemned property’s fair market value. City of Wichita v. Eisenring, 269 Kan. 767, 773, 7 P.3d 1248 (2000) (citing 5 Nichols on Eminent Domain § 18.05[l][3d ed. 1997]). “Fair market value” is in turn defined as “the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion.” K.S.A. 26-513(e).
K.S.A. 26-513(d) provides a “nonexclusive list” of 14 factors to ascertain the amount of compensation and damage. “Thus, any competent evidence bearing upon market value generally is admissible including those factors that a hypothetical buyer and seller would consider in setting a purchase price for the property.” 269 Kan. at 773 (citing 5 Nichols on Eminent Domain § 18.05[1].
The district court and the parties ask that we determine the property’s zoning classification because that “will largely determine the just compensation, the only issue in this case.” We begin by observing that zoning classification certainly is not dispositive of value:
“[I]n determining, for condemnation purposes, the most profitable use to which land can reasonably be put in the reasonably near future, the existing zoning restrictions or other restrictions should be considered, but they are not determinative.” (Emphasis added.) 29A C.J.S., Eminent Domain § 148(d).
K.S.A. 26-513(d)(1) is in agreement: “The most advantageous use to which the property is reasonably adaptable” is but one of the 14 nonexclusive factors of compensation.
PIK Civ. 3d 131.05 addresses this adaptability factor and states in relevant part:
“In determining fair market value, you should consider all of the possible uses to which the property could have been put, including the best and most advantageous use to which the property was reasonably adaptable, but your considerations must not be speculative, conjectural, or remote. The uses which may be considered must have been so reasonably probable as to have had an effect on the fair market value of the property at the time of the taking.” (Emphasis added.)
Determining the uses to which the property was reasonably adaptable includes consideration of a reasonable probability of zoning changes. 5 Nichols on Eminent Domain, § 18.05[3], p. 18-32, provides in relevant part:
“Admissibility of a proposed use requires a showing that the property is both physically adaptable for that use and that there is a demand for such use in the reasonably near future. Even if the asserted use is prohibited by zoning or other land use designations or requires the issuance of governmental permits, evidence of such use is admissible upon a showing that it is reasonably probable that the zoning or other designations would be changed or that permits would be issued.” (Emphasis added.)
We next observe that in Kansas the issue of rezoning probability as a factor in determining the fair market value of the taken property is a jury question. PIK Civ. 3d 131.06 provides:
“If you find that the best use to which the land could have been put at the time of the taking was a use other than that for which it was zoned at the time, and that there was a reasonable probability of its being later rezoned to permit such use, then you may consider such use in determining the market values.” (Emphasis added.)
Regnier Builders, Inc., v. Linwood School District No. 1, 189 Kan. 360, 369 P.2d 316 (1962), is of guidance. There, the Linwood School District filed suit to acquire 3 acres from a 15.75-acre tract for public school purposes. After the court-appointed appraisers fixed the value of the 3 acres at $10,500 and found no damage to the 12.75 acres remaining, the landowner, Vic Regnier Builders, Inc., appealed to the district court. The jury heard testimony from 3 expert witnesses per party and from the landowner. The jury found the 3 taken acres were worth $21,000 and the remaining 12.75 acres were damaged in the amount of $6,500.
The 15.75-acre tract was located at the southeast comer of the intersection of 95th Street and Mission Road in Overland Park. Although the tract was zoned residential, evidence established that Ranch Mart, a large shopping center, was located at the northeast corner of the intersection. Consequently, “there was [landowner s] expert testimony that the tract’s highest and best use was for commercial purposes and that it was probable the property would be rezoned for that use within three to five years.” (Emphasis added.) 189 Kan. 361. According to the landowner’s expert witness, these considerations supported appraising the value of the 3 acres at $60,000 and the damage to the remainder at $10,000.
The court initially observed:
“The owner is entitled to show the fair market value of . . . land for every purpose to which it is adapted. The fact that it has been used for one purpose only does not prevent [the landowner] from showing its availability for other appropriate purposes and its value for such uses, but the uses which may be considered must be so reasonably probable as to have an effect on the present market value of the land. [Citations omitted.]” (Emphasis added.) 189 Kan. at 362.
The court also denied the school district’s challenge to a jury instruction (not set forth in the opinion), stating:
“The jury was advised if it found drat the best adaptable use to which the land could have been put at the time of the condemnation was a use other than that for which it was zoned at the time and that there was a reasonable probability on September 4, 1959, [date of the taking] of its being later rezoned to permit such use, then it might consider such fact in determining fair market value of the property insofar as that use tended to affect the immediate value of the property. In view of the landowner’s expert[’s] testimony we cannot say the instruction was prejudicial or erroneous.” (Emphasis added.) 189 Kan. at 363-64.
Testimony apparently ranged from one expert witness’ $10,500 residential value for the 3 taken acres with no damage to the remaining 12.75 acres, to the “probable zoning change” expert witness’ $60,000 commercial value for the 3 taken acres with damage to the remainder of $10,000. That range, coupled with a jury verdict of $21,000 for the value of the 3 acres with damage to the remainder of $6,500, demonstrates that the jury likely factored in the probability of a zoning change from residential to commercial when it determined fair market value.
A synthesis of these authorities leads us to conclude that if a jury is capable of hearing evidence of reasonably probable zoning changes from an opining expert witness, it is also capable of hearing similar evidence, i.e., an expert witness opining on the zoning classification of die property at the time of the taking. Similarly, if a jury is capable of hearing evidence of opinions by expert witnesses on the value of the property, based in part upon the probability of zoning changes, see Regnier Builders, Inc., 189 Kan. 360, it is also capable of hearing evidence of opinions by expert witnesses on the value of the property, based in part upon their conclusions about the existing zoning classification.
The jury would not necessarily be required to determine the actual zoning classification at the time of the taking but could take into consideration the impact of this question — and its certainty, probability, or improbability — in determining what a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open market. We consider this “competent evidence bearing upon market value.” See Eisenring, 269 Kan. at 773. Similarly, the experts may consider, as part of tireir evaluations, the same factors that the parties have argued on appeal to support their points establishing the zoning classification at the time of the taking. Examples include: reliance, estoppel, acquiescence, substantial compliance with K.S.A. 3-307e, collateral attacks, and lack of county airport zoning regulations when the city acted to rezone in 1989.
Reliance upon expert witnesses in eminent domain proceedings is routine. Indeed, as this court stated in Eisenring, 269 Kan. at 774:
“Evidence in an eminent domain proceeding consists mostly of the opinions of witnesses who are sufficiently well informed on the subject to be helpful and informative to the jury. Such evidence is allowed because the valuation of real estate is largely a subjective matter and cannot be definitely determined by the application of any exact principle of science. [Citation omitted.]”
On remand, the expert opinions would be based upon the witnesses’ education, training and experience, as well as the facts of the case, and would be tested under cross-examination. As this court stated in Regnier Builders, Inc., 189 Kan. at 362:
“The testimony of expert witnesses is weighed by the jury under proper instructions by the court the same as the testimony of other witnesses. The means of testing the competency of expert witnesses in condemnation proceedings is by cross-examination. Only by permitting their cross-examination to the fullest extent can a jury be in a position to determine the probative value of their testimony.”
Under the circumstances of this case, the district court erred in determining that the zoning classification of the taken property was R-l. It also erred in designating a controlling question of law pursuant to K.S.A. 2004 Supp. 60-2102(c) for an interlocutory appeal because we will not make the determination of the actual zoning on the date of the taking, which may or may not be important to the jury in its final valuation. Cf. Regnier Builders, Inc., 189 Kan. 362 (jury verdict between the opinions of those experts testifying on property value when zoned residential and the opinion of an expert testifying on property value when reasonable probability of zoning change to commercial).
We reverse and remand to the district court for proceedings consistent with this opinion.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Davis, J.:
Robert Henry Lackey, II, was convicted by a jury of one count of premeditated first-degree murder in violation of K.S.A. 21-3401(a) (Ensley 1981) and one count of rape in violation of K.S.A. 21-3502 (Ensley 1981), for crimes committed in December 1982. Pursuant to K.S.A. 1982 Supp. 21-4504 of the Habitual Criminal Act (HCA), his sentence was enhanced to two consecutive terms of hfe imprisonment and 45 years to hfe. He appeals directly to this court pursuant to K.S.A. 22-3601(b)(1).
In 1982, the victim, S.B., was a 22-year-old college student who met the defendant while she was doing volunteer work at the Gospel Mission (Mission) in Salina. The defendant was a transient who was staying at the Mission and working as a cook, and he was known as Bob Moore. S.B. and the defendant developed a friendship which involved socializing outside of the Mission with friends Mark and Dora Foster. In November 1982, the defendant indicated to Mark that he wanted to date the victim, but she had rebuffed his sexual advances indicating that she only wanted to be friends. This upset the defendant and made him angry.
In December 1982, S.B. was living in a trailer park in Salina. She had been dating Jay Czamowski exclusively for about a year, and he had a key to her residence. They had been having problems and had an understanding that they could date outside of their relationship; however, Czamowski did not know that S.B. had done so. On Thursday, December 9,1982, Czamowski and S.B. got into an argument at her residence about his plans to go home for the weekend. They made up that evening and had unprotected vaginal or anal intercourse. Czamowski went home to Lincolnville on Friday, December 10, 1982.
On that day, S.B. spoke with her mother and sister on the telephone regarding their plans to visit S.B. for Christmas. S.B.’s mother then tried to call S.B. several times throughout the next week, but S.B. did not answer. At S.B.’s parents’ request, the trailer park landlord checked S.B.’s mobile home the following Thursday but did not find her.
On December 11, 1982, Pamela Chavez (now Bishop) went to work around 4 p.m. at a local tavern as a bartender. The defendant was drinking and playing pool, and he introduced himself to Chavez. She served him two pitchers of beer before he asked her to call him a cab between 6 and 7 p.m. He told Chavez that he was drunk, and he left a note for his friend Dora Foster who worked at the tavern saying that he was “messed up.”
Wenda Huehl (now Plunkett) arrived at the tavern between 5:30 and 6:30 p.m. to visit Chavez. Huehl saw Chavez playing pool with the defendant and remembered that the defendant later asked Chavez to call him a cab to the trailer park where S.B. lived. Huehl specifically recalled the name of the trailer park because she lived across the street from it and had considered offering the defendant a ride, but the cab had already been called.
Yellow Cab radio logs indicated that cab driver Harvey McIntyre picked up a fare at 6:17 p.m. on December 11, 1982, from the tavern and took the fare to a convenience store about a block and a half from S.B.’s residence. McIntyre described the fare at trial as a white, slender male, in his twenties with dark hair, a little taller than himself, wearing a ball cap. The logs also indicated that a fare was picked up by cab driver William Letterman from the convenience store at 10:50 p.m. and the fare was taken to the Mission. At the time of the November 2002 trial, Letterman was deceased and his statements were admitted over objection through the testimony of a retired Salina police officer.
Although also deceased at the time of trial, Reverend George Knight told investigating officers in 1982 that he recalled that the defendant had returned to the Mission around 10 or 11 p.m. on December 11, 1982. Knight smelled alcohol on his breath but did not say anything. Knight went home and assumed the defendant was going to bed. When Knight arrived the next morning at 7:30, he was surprised to discover the defendant and his personal belongings were gone. A pair of men’s underwear was subsequently found underneath the defendant’s bed at the Mission.
Czarnowski returned to Salina either on the following Sunday or Monday, December 12 or 13, 1982. He recalled stopping by S.B.’s residence to see her, but she was not home. He could not recall if he went inside. Czarnowski returned to the residence the next several days looking for S.B., spoke with her neighbors, and looked for her at the Mission and several taverns. He spoke with Mark Foster indicating he was worried that she might have gone somewhere with the defendant because he would be able to take her out of the state. Czarnowski spent several nights at the trailer during the week, but he did not remember doing any housekeeping or picking up or opening of S.B.’s mail during this time. He did not go into the back bedroom that was used for storage.
By Friday, December 17,1982, Czarnowski concluded that S.B. had left, and he decided that he was going to move his belongings out of her mobile home. He spent that night in the front bedroom and his friend Duane Newirth slept in the living room. While moving his belongings the next morning, Czarnowski discovered S.B.’s body in the closet of the back bedroom when he was looking for a stereo speaker. Czarnowski and his friend called the police.
At 12:55 p.m. on December 18, 1982, Salina police officers responded to the scene and discovered S.B.’s body in the closet of the back bedroom. S.B. was wearing socks and underwear and her jeans were pulled down around her ankles. She had noticeable bruising around her neck. Several items were blocking the closet doors where she was found.
Dr. Erik Mitchell and Officer Joseph Garman testified that the higher the temperature, the faster the decaying of a body process occurs. Although the thermostat was set at 80 degrees in the mobile home, Officer Garman did not smell the odor of a decaying body. However, there was a cold air return vent in the floor of the closet where the body was found. Officer Garman turned the thermostat down to 68 degrees to prevent the body from decaying.
Saline County Coroner Dr. David Clark arrived at the scene and made arrangements for an autopsy. Based on his observations at the scene, Dr. Clark opined that S.B. had died of strangulation and had been dead 6 to 8 days. Dr. William Eckert, who was deceased at the time of trial, performed the autopsy on December 20,1982, and prepared a report. The State’s expert, Dr. Mitchell, reviewed Dr. Eckert’s report in conjunction with other evidence from the scene and over a hearsay objection testified that the cause of death was strangulation and that the death had occurred at least 1 or 2 days prior to the body’s discovery, but the maximum time could have been considerably longer.
Officers found two pieces of paper on the kitchen wall which contained the names Bob Walston and Jim Hemmy (her landlord) and the telephone numbers for the tavern and a cab company. Several other papers and letters were collected from the scene, including an empty envelope addressed to S.B. and postmarked December 13,1982, from Lincolnville. A small unopened envelope was also found in the residence which was postmarked “Fort Scott, Kansas, December 16, p.m., 1982.” Salina Deputy Police Chief Bariy Plunkett testified that letters found at the scene would routinely be opened during an investigation, but he could not recall whether the mail was opened in this case.
Officer Garman spoke with Czamowski at the scene. During that conversation, Czamowski indicated that S.B. had worked with someone named “Bob” at the Mission, who had made it known that he had “the hots” for her. Although an investigation was pursued, the case eventually went inactive until Kansas Bureau of Investigation (KBI) Special Agent Ron Hagen and Salina Police Detective Paul Forrester resumed the investigation in November 1996. They received information from Canadian authorities that a Robert Moore was involved in a 1982 homicide in Salina. Through the use of two social security numbers provided by the Canadian authorities, investigators learned the name Robert Lackey. Czarnowsld and Mark Foster later identified a 1979 photograph of Lackey as the person they knew as Robert Moore. DNA testing of the body fluids on the underwear found under the defendant’s bed was consistent with the fluids found in the victim’s rape kit.
Armed with an arrest warrant, Hagen and Forrester tracked the defendant to Alabama where they interviewed him at the Sumpter County, Alabama, Sheriffs Department. Prior to his Miranda warnings being given, the defendant said that he had never been to Kansas when he was advised that someone named Robert Moore was using his social security number in Kansas. He subsequently said that he did not know S.B. or Robert Moore, but he may have been in Kansas in 1969 or 1970. The defendant’s pretrial motion to suppress his statements made before Miranda warnings was denied. In March 2002, the defendant was extradited to Kansas and his blood was drawn for DNA testing purposes.
DNA testing was performed on vaginal, anal, and oral swabs taken from S.B., scrapings from under her fingernails', and a cutting from the underwear found under the defendant’s bed at the Mission and compared with known bloodstains of the defendant and Czamowski. Expert testimony established that the sperm cells found in S.B.’s vagina and on the cutting from the underwear were consistent with the defendant’s DNA. The estimated probability of selecting an individual at random from the general unrelated Caucasian population was 1 in 194 billion. Moreover, the defendant could not be excluded as a partial contributor to the DNA profile from the victim’s fingernail scrapings, but Czamowski was eliminated.
The defendant was convicted by a jury of premeditated first-degree murder and rape. Pursuant to the HCA, the defendant’s sentence was enhanced to two consecutive terms of life imprisonment and 45 years to life. The defendant’s posttrial motions for a new trial and judgment of acquittal were denied.
On appeal, the defendant asks this court to reverse his convictions based upon the following claims: (1) The admission of hearsay statements in violation of the Confrontation Clause; (2) the denial of a continuance to obtain an exculpatory witness; (3) the admission of Dr. Mitchell’s expert opinion testimony based upon the autopsy performed by Dr. Eckert and the resulting violation of the Confrontation Clause; (4) the exclusion of evidence supporting the defendant’s consent defense to the rape charge; (5) the admission of statements in violation of Miranda v. Arizona, 384 U.S. 436, 15 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1996); (6) the victim’s sister’s testimony denied the defendant a fair trial; (7) cumulative error; (8) the trial court’s error in applying the HCA; and (9) the HCA violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm the defend ant’s convictions, vacate the defendant’s sentence, and remand the case for resentencing.
Hearsay and Confrontation Clause Violations
a. Statements of Deceased Cab Driver
Prior to trial, the State filed a motion of intent to present evidence of prior statements of unavailable witnesses pursuant to K.S.A. 2004 Supp. 60-460(d)(3). The State sought to admit evidence of a police interview with cab driver Letterman that occurred on December 22, 1982. After a pretrial hearing, the district court found that Letterman (deceased) was unavailable as a witness and the proffered testimony of the officer who interviewed Letterman was admissible hearsay under 60-460(d)(3). Applying Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), and State v. Bratt, 250 Kan. 264 Syl. ¶ 2, 824 P.2d 983 (1992), the court concluded that the proffered evidence possessed a particularized guarantee of trustworthiness, rendering tire hearsay statements of Letterman admissible.
At trial, over the defendant’s hearsay objection, retired police officer James Miller testified that he had interviewed Letterman regarding a fare Letterman picked up at the convenience store a block and a half from the victim’s residence around 10:50 p.m. on December 11,1982. Letterman told him the fare was a white male with short brown hair, in his late twenties or early thirties, 5'9" to 6' tall, medium build, a shadow beard, and his hair was possibly messed up. The man smelled of alcohol, but he did not appear to be intoxicated. The man appeared to be in a hurry because he opened and shut the door fast and spit out the address really fast. The defendant’s posttrial motion for a new trial regarding this issue was also denied.
No dispute exists in this case that Letterman’s statements fall under K.S.A. 2004 Supp. 60-460, which in relevant part provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made ... (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of tire action and with no incentive to falsify or to distort.”
However, the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her. This constitutional provision does not preclude the admission of all out-of-court statements. State v. Meeks, 277 Kan. 609, Syl. ¶ 1, 88 P.3d 789 (2004). In determining the admissibility of hearsay exceptions, the court must also consider the requirements of the Confrontation Clause. 3 Barbara, Kansas Law and Practice, Lawyer s Guide to Kansas Evidence, Hearsay § 7.1(B) (3d ed. 2003). The Confrontation Clause can operate to bar admission of evidence that would otherwise be admissible under an exception to the hearsay rule if confrontation requirements (reliability and trustworthiness) are not met. State v. Betts, 272 Kan. 369, 382-83, 33 P.3d 575 (2001).
In this case, the district court admitted the hearsay testimony of Letterman based upon this court’s analysis in State v. Bailey, 263 Kan. 685, 692-93, 952 P.2d 1289 (1998) (quoting Bratt, 250 Kan. 264, Syl. ¶ 1), and was in large part based upon Roberts, 448 U.S. 56. In Bailey, we found:
“ ‘The Confrontation Clause operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness’ statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls unthin a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness.’ ” (Emphasis added.) 263 Kan. at 692-93.
However, after trial, the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), substantially altered the Confrontation Clause analysis expressed in Bailey and Roberts. See Meeks, 277 Kan. at 613-14. In Crawford, the Court drew distinctions between testimonial and nontestimonial hearsay evidence, holding:
“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ [constitutional] design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is as issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations.” (Emphasis added.) 541 U.S. at 68.
After Crawford was decided, this court considered in Meeks whether the district court erred in admitting into evidence a shooting victim’s response to the investigating officer’s question of who had shot him under hearsay exception 60-460(d)(3). We summarized Crawford as holding
“that witnesses’ out-of-court statements that are testimonial are barred under the Confrontation Clause unless (1) the witnesses are unavailable and (2) the defendants had prior opportunity to cross-examine those witnesses. In other words, the Roberts standards of admissibility, as used by this court in Bailey, could not apply to testimonial statements, with the possible exception of testimonial dying declarations.” Meeks, 277 Kan. at 614 (citing Crawford, 541 U.S. at 56 n.6).
Although the Crawford Court declined to comprehensively define what was meant by “testimonial” statements, it did describe one formulation as “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” 541 U.S. at 51-52. The Court found that “[statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard,” stressing that various forms of interrogations exist. It concluded that the defendant’s wife’s recorded statement, knowingly given in response to structured police questioning, qualified as an interrogation under any conceivable definition. 541 U.S. at 52-53 and n.4.
In Meeks, the first officer to the scene asked the victim who had shot him and the victim responded, “Meeks shot me.” Minutes later, the victim fell unconscious and subsequently died. Although we found that we need not determine whether tibe response was testimonial because Meeks had forfeited his right to confrontation by killing the witness, we did note that the officer “was arguably conducting an interrogation when he asked [the victim] if he knew who shot him, thus making the response testimonial.” 277 Kan. at 614.
Applying Crawford and Meeks to this case, Officer Miller s interview with witness Letterman conducted during the police investigation resulted in statements that an objective witness would think would be used for trial and could arguably be construed as a police interrogation. Applying the Crawford test when testimonial evidence is at issue, the Sixth Amendment demands unavailability and prior opportunity for cross-examination. Letterman s death rendered him unavailable, and the defense did not have a prior opportunity to cross-examine him. As such, the district court erred in admitting evidence of Letterman’s testimonial hearsay statements made during the police interview through the testimony of Officer Miller.
The State concedes that the admission of the hearsay statements was a violation of the Confrontation Clause in light of Crawford; however, it contends the violation was harmless error. Although the Crawford Court did not perform a harmless error analysis, the Tenth Circuit Court of Appeals has found that Confrontation Clause violations under Crawford are subject to a harmless error analysis. See Brown v. Uphoff, 381 F.3d 1219 (10th Cir. 2004). In State v. Atkinson, 276 Kan. 920, Syl. ¶ 6, 80 P.3d 1143 (2003), this court set forth the following inquiry for violations of the Confrontation Clause:
“Violation of the Confrontation Clause is subject to a [federal] harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Factors to be considered include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.”
The State argues the hearsay error was harmless, reasoning: (1) The testimony took up little more than 1 page out of over 400 pages of trial transcript, (2) half of the statements were cumulative because they reiterated the testimony of Edward French and the business records of the cab company estabhshing that Letterman picked up a fare at the convenience store, (3) the uncorroborated testimony was not particularly important because it referred only to a general description of the man and that he seemed to be in a hurry, and (4) none of the statements directly implicated the defendant.
Applying the Atkinson factors to this case, the testimony was important because it inferred that the cab driver picked up someone who matched the defendant’s general description from a convenience store near the victim’s home and the man was rushed and disheveled. Part of this testimony was cumulative, however, as the business records established that Letterman had picked up a fare at the convenience store. While the deceased witness was unable to testify, the defense was able to cross-examine Officer Miller about the fact that he did not ask Letterman if the fare had waited inside or outside in the light or shadows, about the number of fares he had driven that evening, how long his shift was or if he had a second job, whether he had been drinking that evening, or whether he wore glasses. In this manner, the defense was able to attack the credibility of the testimony in some manner.
Ultimately, as the State points out, the defendant’s convictions relied not upon a few lines of hearsay from a deceased cab driver but upon the overwhelming DNA evidence and the testimonies of live witnesses putting the defendant in the right places at the right times. The admission of a few hearsay statements from the police interview with Letterman, while a violation of the Confrontation Clause, constituted harmless error under facts of this case.
b. Expert Testimony Based on Autopsy Reports of Deceased Doctor
Dr. Clark served as the county coroner at the time of S.B.’s death, and he observed the victim’s body at the murder scene. He directed that an autopsy be performed. Dr. Eckert, who died prior to trial, conducted the autopsy and prepared the autopsy report. The autopsy report contained an external, internal, and microscopic description of the body and did not suggest the date of death. Deputy Police Chief (formerly Sergeant) Plunkett attended the autopsy and testified at trial.
As part of his coroner duties, Dr. Clark filed a written report with die clerk of the district court concerning the victim’s death. The autopsy report was attached to the filed coroner’s report. During Dr. Clark’s testimony, the district court admitted the coroner’s report but granted the defense’s objection to the admission of the attached autopsy report on hearsay grounds.
The State asked Dr. Clark if he had an opinion as to the cause of the victim’s death based upon his own observations and his review of Dr. Eckert’s autopsy report. The defense objected on the grounds that Dr. Clark would be relying upon hearsay evidence from the autopsy report, and the State clarified to the district court that the question was based upon Dr. Clark’s own inspection of the crime scene. The district court overruled that objection and a similar one concerning the time of death. Dr. Clark opined that the cause of death was strangulation and suffocation. Taking into consideration temperatures and the amount of deterioration of the body, he opined that the victim had been dead for 6 to 8 days.
Forensic pathologist and coroner of multiple Kansas counties, Dr. Mitchell testified next as an expert witness on behalf of the State. Over objection, he testified that the condition of the body was such that it could have been in the closet from December 11 to December 18, 1982, and that the cause of death was strangulation. Dr. Mitchell arrived at this conclusion based upon the autopsy report, photographs from the scene and autopsy, the toxicology report from the Kansas Department of Health, and the death certificate.
The defense objected to this testimony, arguing that it had no way of knowing how much of Dr. Mitchell’s opinion as to the time of death was based on Dr. Eckert’s autopsy report and that an expert witness under K.S.A. 60-456(b) cannot render an opinion as to a matter that is hearsay and not evidence before the court. After substantial argument, the district court changed its earlier ruling and admitted the autopsy report, reasoning:
“The Court finds that [the] Dr. William Eckert, deceased, pathology report . . . performed on December the 20th, 1982, at Saint Francis Hospital, is a report of Dr. Eckert’s perceptions [of the] medical examination on that date. The Court finds Dr. Eckert, obviously, is unavailable. lie’s now deceased. The Court finds that this is hearsay, but it’s hearsay that was reasonably preserved by the declarant at a time when Dr. Eckert was making very technical medical observations. It’s not subjective, in the Court’s opinion. It’s a — it’s a medical doctor’s rendition of what he observes.
“The Court finds that inherent circumstances show reliability, that it was made in good faith, with no incentive to falsify or to distort. The Court’s aware of the confrontation problems which arise under Ohio v. Roberts and that the Court must find that there is a particularized guarantee of trustworthiness. And I have to decide whether this report, surrounding circumstances, show a particularized guarantee of trustworthiness. The Court finds it does. It’s a neutral fact witness who was doing a medical examination. If I’m wrong, I’m wrong. But it seems to me that if ever there was neutral situation, this is it. And, the Court’s going to admit State’s Exhibit 42 [autopsy report] over the objection of the defendant. Now, with State’s Exhibit 42 admitted, the Court sees no reason it can’t be the basis of [an opinion by] another pathologist.”
In his brief on appeal, the defendant argued that Dr. Eckert’s autopsy report was inadmissible hearsay under the Confrontation Clause because no showing was made regarding Dr. Eckert’s reliability and the report was thus improperly used by Dr. Mitchell to form the basis for his expert opinion testimony. The defendant relied in part upon the analysis set forth in Roberts, 448 U.S. 56, in arguing that the State failed to prove that the autopsy report prepared by Dr. Eckert carried a particularized guarantee of trustworthiness.
However, defense counsel subsequently filed Supreme Court Rule 6.09(b) (2004 Kan. Ct. R. Annot. 42), a letter informing this court that he intended to argue that Dr. Eckert’s statements in the autopsy report were inadmissible under Crawford, 541 U.S. 36, because they were testimonial and the defense had no opportunity for cross-examination. Resolution of this issue involves multiple layers of analysis, including whether the autopsy report falls under a hearsay exception, whether it was testimonial under Crawford, and whether it could be used by the State’s expert.
Hearsay
“An appellate court’s first consideration when examining a challenge to a district court’s admission of evidence is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” State v. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 (2004).
No question exists in this case that the autopsy report is relevant. Relevancy established, an appellate court reviews the district court’s decision to admit or exclude hearsay evidence under the abuse of discretion standard of review. State v. Flynn, 274 Kan. 473, 507, 55 P.3d 324 (2002).
The parties seem to agree that the autopsy report was hearsay, but they differ on the hearsay exception under which the autopsy report should be analyzed. The defendant’s analysis focuses on K.S.A. 2004 Supp. 60-460(d)(3), while the State focuses on K.S.A. 2004 Supp. 60-460(o). Although both exceptions were discussed before the district court, it appears the evidence was admitted under 60-460(d)(3). Under this exception, the district court must find:
“ ‘(1) the declarant is unavailable as a witness, (2) the matter described was recently perceived by the declarant and made while memory was fresh, and (3) the statement was made under circumstances so as to show that is was in good faith, before there was any action pending, and with no incentive to falsify or distort.’ ” State v. Broyles, 272 Kan. 823, 839, 36 P.3d 259 (2001) (quoting Barbara, Kansas Rules of Evidence with Evidence Objections and Evidentiary Foundations § 7.6 [3d ed.1993]).
We conclude that the autopsy report would fall under K.S.A. 2004 Supp. 60-460(d)(3). Dr. Eckert’s death rendered him unavailable at trial. The autopsy was performed on December 20, 1982, and the description portion of the autopsy report Dr. Eckert prepared was dated December 21, 1982, the day after the autopsy was performed. The autopsy report was prepared as part of his duties as a pathologist, prior to any pending litigation. No evidence was presented that Dr. Eckert had any reason to falsify or distort his routine medical observations of the body. Although the autopsy report would qualify under this subsection, this issue is subject to the Confrontation Clause analysis as further discussed hereafter.
Additionally, tire State argues that the autopsy report qualified as an official document exception to hearsay under K.S.A. 2004 Supp. 60-460(o), which provides:
“(o) Content of official record. Subject to K.S.A. 60-461 and amendments thereto, (1) if meeting the requirements of authentication under K.S.A. 60-465 and amendments thereto, to prove die content of the record, a writing purporting to be a copy of an official record or of an entry therein or (2) to prove the absence of a record in a specified office, a writing made by the official custodian of the official records of the office, reciting diligent search and failure to find such record.”
K.S.A. 2004 Supp. 60-465 provides in relevant part:
“A wilting purporting to be a copy of an official record or of an entry therein, meets the requirements of authentication if the judge finds drat the writing purports to be published by audiority of the nation, state or subdivision thereof, in which the record is kept or evidence has been introduced sufficient to warrant a finding diat the wilting is a correct copy of the record or entry.”
The State relies upon State v. Bell, 239 Kan. 229, 232-33, 718 P.2d 628 (1986), in which this court found that a coroner s report is required to be filed with the clerk of the district court in the county where the death occurs under K.S.A. 19-1032 (Ensley 1981) (now K.S.A. 2004 Supp. 22a-232) and becomes an official public document admissible under tire exception in K.S.A. 60-460(o). See also State v. Hobbs, 276 Kan. 44, 52-53, 71 P.3d 1140 (2003) (error in excluding coroner s report as evidence during the testimony of deputy coroner that had performed the autopsy but had not authored tíre report of death where no question regarding trustworthiness was raised; report spoke for itself, was relevant and was admissible under 60-460[o]). In contrast, the defendant cites State v. Johnson, 220 Kan. 720, 725, 556 P.2d 168 (1976) (directing trial court to excise hearsay information contained within five-page coroner s report).
The assumption at trial and on appeal was that tire autopsy report was not required to be filed with the district court. However, both parties fail to recognize a critical statute in effect at tire time of the murder which required the autopsy report to be filed with the clerk of the district court as well. K.S.A. 19-1033 (Ensley 1981) provides that if the coroner requests an autopsy: “A full record and report of the facts developed by the autopsy and findings of a person making such autopsy shall be promptly made and filed with the coroner and with the clerk of the district court of the county in which the decedent died.”
Since a copy of the autopsy report was required to be filed with the clerk of die district court as well as the coroner s report, it follows that the autopsy report would also qualify as a copy of an official record under K.S.A. 2004 Supp. 60-460(o). Dr. Clark testified that a copy of the autopsy report was attached to the coroner s report that he filed with the clerk of the district court. The autopsy report was stamped: “TRUE & ACCURATE COPIES OF RECORDS RETAINED AT THE SALINA POLICE DEPT.” The defendant did not challenge that the autopsy report was not authentic; rather, he challenged the inherent reliability of Dr. Eckert’s statements within the report. Thus, we conclude that the autopsy report was admissible under both hearsay exceptions, subject to a Confrontation Clause analysis.
Confrontation Clause
The defendant argues that even though the autopsy report may have been admissible as a business or official record exception to hearsay, Dr. Eckert’s statements in the autopsy report were inadmissible under K.S.A. 60-456 and Crawford because they were testimonial and the defendant had no opportunity for cross-examination. As Dr. Eckert was never subject to cross-examination by the defense, the key determination under the Confrontation Clause analysis in this case is whether Dr. Eckert’s autopsy report was testimonial evidence under Crawford. As previously noted, the United States Supreme Court has provided the following guidance in that regard:
“Various formulations of this core class of‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ [citation omitted]; ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation omitted]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ [citation omitted]. These formulations all share a common nucleus and then define the [Confrontation] Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition ....
“Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” 541 U.S. at 51-52.
The determination of whether an autopsy report is testimonial is an issue of first impression in Kansas. The defendant cites several cases from other jurisdictions which do not involve autopsy or coroner’s reports in arguing that the court should evaluate the admission of a report of an unavailable coroner under Crawford depending on the reasonable expectation of how that report will be used. In these cases, the courts distinguish between reports compiled as ordinary business records (nontestimonial) and those prepared with the reasonable expectation of use in a subsequent prosecution (testimonial). See In re T. T., 351 Ill. App. 3d 976, 992-95, 815 N.E.2d 789 (2004) (Child victim’s hearsay statements to the doctor describing the cause of symptoms or pain or the general character of a sexual assault were not testimonial, but her statement identifying the respondent as the perpetrator was testimonial.); City of Las Vegas v. Walsh, 91 P.3d 591, 593-96, modified 100 P.3d 658 (Nev. 2004) (Nurse’s affidavit regarding the conditions under which she drew blood from the defendant for testing related to driving under the influence was testimonial because it was prepared solely for the prosecution’s use at trial.); People v. Hernandez, 7 Misc. 3d 568, 569-70, 794 N.Y.S.2d 788 (2005) (Latent fingerprint report not requested by prosecution and made before defendant’s identity was known was testimonial because the fingerprints were not simply taken for administrative use but “were taken with the ultimate goal of apprehending and successfully prosecuting a defendant.”); People v. Rogers, 8 App. Div. 3d 888, 891-92, 780 N.Y.S.2d 393 (2004) (Blood alcohol report generated by a private lab generally relied upon by the state police was testimonial “[bjecause the test was initiated by the prosecution and generated by the desire to discover evidence against defendant, the results were testimonial, and the defendants had the right to cross-examination regarding the authenticity of the sample and the testing methodology.”); State v. Powers, 124 Wash. App. 92, 101-02, 99 P.3d 1262 (2004) (911 call reporting violation of a no-contact domestic violence order was testimonial because it was not part of the criminal incident itself or a request for help but instead was a report of the violation of the protective order and a description to assist in apprehension and prosecution.).
However, other jurisdictions have admitted similar evidence without making this distinction. Rios v. Lansing, 2004 WL 2750261 (10th Cir. 2004) (unpublished opinion filed December 2, 2004) (Civilian social workers report required to be produced pursuant to internal rules and regulations for defendant’s daughterMctim’s juvenile dependency case was nontestimonial — Tenth Circuit Court of Appeals did not distinguish between types of statements within the report.); State v. Dedman, 136 N.M. 561, 569-72, 102 P.3d 628 (2004) (Blood alcohol report, while prepared in anticipation of trial, was nontestimonial because it was routine, nonadversarial and made to ensure accurate measurement.); People v. Moscat, 3 Misc. 3d 739, 745, 777 N.Y.S.2d 875 (2004) (911.call for help was not testimonial: “A testimonial statement is produced when the government summons a citizen to be a witness; in a 911 call, it is the citizen who summons the government to his or her aid.”).
The defendant argues the court should analyze autopsy or coroner’s reports by examining the reasonable expectation of how the reports will be used. He argues that under Kansas statutes a coroner is notified of a death under the following circumstances which may all lead to potential litigation:
“When any person dies, or human body is found dead in the state, and the death is suspected to have been the result of violence, caused by unlawful means or by suicide, or by casualty, or suddenly when the decedent was in apparent health, or when decedent was not regularly attended by a licensed physician, or in any suspicious or unusual manner, or when in police custody, or when in a jail or correctional institution, or in any circumstances specified under K.S.A. 22a-242, and amendments thereto, or when the determination of the cause of a death is held to be in the public interest .... The coroner in the county of the cause of death shall decide if an investigation shall take place. . . . Investigation may include, but is not limited to, obtaining medical and law enforcement background information, examination of the scene of the cause of death, inquest, autopsy, and other duties required of the coroner.” K.S.A. 2004 Supp. 22a-231.
Under K.S.A. 2004 Supp. 22a-232, the coroner must make inquiries regarding the cause of death if the case falls under K.S.A. 2004 Supp. 22a-231 and reduce the findings to a written report. The defendant argues that a coroner does not have to perform an autopsy in all cases; however, those that are performed can be said to have been prepared with the reasonable expectation of litigation in mind. The defendant seeks to distinguish cases where only ordinary litigation is expected, i.e., probate or insurance claims, by arguing those autopsy reports are nontestimonial in nature. Where autopsy reports are prepared in cases of homicide, the defendant contends the expectation of a criminal prosecution is clearly in mind and therefore the reports are testimonial. However, none of the cases which have addressed autopsy reports under Crawford have adopted this point of view.
In Smith v. State, 898 So. 2d 907 (Ala. Crim. App. 2004), the Alabama Court of Criminal Appeals considered whether a defendant’s confrontation rights were violated when autopsy evidence and a report' were admitted without the testimony of the medical examiner who performed the autopsy. The court found that this evidence was not testimonial under Crawford. 898 So. 2d at 916. However, the court went on to find that although the autopsy report was admissible under the business records exception, under the particular facts of the case, the defendant’s confrontation rights were violated because the cause of death was a crucial element of the charge against the defendant and the prosecution was permitted to prove an essential element without providing the defendant with an opportunity to cross-examine the pathologist who originally determined the cause of death was asphyxiation, but the court found this violation to be harmless error. 898 So. 2d at 916-18. See also State v. Perkins, 897 So. 2d 457, 462-65 (Ala. Crim. App. 2004) (autopsy report was nontestimonial under Crawford).
In Moreno Denoso v. State, 156 S.W.3d 166, 180-82 (Tex. App. 2005), rev. denied September 14, 2005, after concluding that the certified autopsy report was admissible under the public records exception, the court considered whether the report was admissible under the Confrontation Clause because, as in this case, the report’s author had died prior to trial. Contrary to our defendant’s assertions in his Supreme Court Rule 6.09 letter of authority, the Texas Court of Appeals did not simply hold that autopsy reports are business records which are not subject to Crawford. Rather, the court cited several Texas cases which had found various statements either testimonial or nontestimonial before concluding that the autopsy report did not fall under any of the categories of testimonial evidence described in Crawford: it was not prior testimony at a preliminary hearing, before a grand jury, or at a former trial; nor was it a statement given in response to police interrogations. The court held that the admission of the nontestimonial autopsy report without the deceased pathologist’s testimony was not a violation of the Confrontation Clause. 156 S.W.3d at 181-82.
In People v. Durio, 7 Misc. 3d 729, 734-36, 794 N.Y.S.2d 863 (2005), the Kings County New York Supreme Court found that an autopsy report prepared by the Office of the Chief Medical Examiner (OCME), a nonlaw enforcement agency designated by statute to investigate unnatural deaths, which was later used in a murder case without the testimony of the medical examiner who performed the autopsy, was not testimonial and thus its admission as a business record did not violate the Confrontation Clause. The court reasoned in part:
“The autopsy report in this case was not manufactured for the benefit of the prosecution. Indeed, an autopsy is often conducted before a suspect is identified or even before a homicide is suspected. That it may be presented as evidence in a homicide trial does not mean that it was composed for that accusatory purpose or that its use by a prosecutor is the inevitable consequence of its composition. The mandate of OCME is clear, to provide an impartial determination of the cause of death. [Citation omitted.]
“Finally, courts cannot ignore the practical implications that would follow from treating autopsy reports as inadmissible testimonial hearsay in a homicide case. Years may pass between the performance of the autopsy and the apprehension of the perpetrator. This passage of time can easily lead to the unavailability of the examiner who prepared the autopsy report. Moreover, medical examiners who regularly perform hundreds of autopsies are unlikely to have any independent recollection of the autopsy at issue in a particular case and in testifying invariably rely entirely on the autopsy report. Unlike other forensic tests, an autopsy cannot be replicated by another pathologist. Certainly it would be against society’s interests to permit the unavailability of the medical examiner who prepared the report to preclude the prosecution of a homicide case.” 7 Misc. 3d at 736.
In Rollins v. State, 161 Md. App. 34, 866 A.2d 926 (2005), the Maryland Court of Special Appeals considered a factually similar case where the district court admitted an áutopsy report prepared by a doctor who did not testify at trial and permitted another doctor to review the report and render an expert opinion concerning the cause of death. On appeal, the court first found that the opinions and conclusions in the autopsy report fell squarely within the business records exception (and the public records exception) of the hearsay rule and was thus “technically” nontestimonial hearsay. However, recognizing that Crawford affords the States flexibility in their treatment of nontestimonial hearsay, the court found thát this allows a certain degree of discretion to the States where the right to confrontation is deemed to be violated by receipt of non-testimonial hearsay covered by a firmly rooted exception to the hearsay rule. 161 Md. App. at 75.
The court resolved this issue by differentiating between objective factual findings (nontestimonial) and opinions and conclusions regarding cause of death (testimonial) contained in the report:
“[T]he findings in the autopsy report of the physical condition of a decedent, which are routine, descriptive and not analytical, which are objectively ascertained and generally reliable and enjoy a generic indicuni of reliability, may be received into evidence without the testimony of the [medical] examiner. Where, however, contested conclusions or opinions in an autopsy report are central to the determination of corpus delicti or criminal agency and are offered into evidence, they serve the same function as testimony and trigger the Sixth Amendment right of confrontation.” 161 Md. App. at 82.
The court recognized that the “inclusion within a factual report of inadmissible evaluations or opinions need not necessarily result in exclusion of the entire report” if those portions were redacted. 161 Md. App. at 74. Under the facts in Rollins, the court found that the admission of the autopsy report was not a denial of the right of confrontation because the trial judge had redacted those portions of the report that constituted opinions or conclusions, including references to the cause and manner of death (asphyxiation) and characterizations as to smothering, homicide, and disease. 161 Md. App. 77-81.
Thus, all of the cases which specifically address autopsy reports: Smith, Moreno Denoso, Durio, and Rollins have found that autopsy reports are generally nontestimonial under Crawford. We believe the reason why these cases have not adopted the arguments and reasoning set forth by the defendant is that it would have the effect of requiring the pathologist who performed the autopsy to testify in every criminal proceeding. If, as in this case, the medical examiner is deceased or otherwise unavailable, the State would be precluded from using the autopsy report in presenting its case, which could preclude the prosecution of a homicide case. We view this as a harsh and unnecessary result in light of the fact that autopsy reports generally make routine and descriptive observations of the physical body in an environment where the medical examiner would have little incentive to fabricate the results. See Moreno Denoso, 156 S.W.3d at 180. (“Even though autopsy reports are partially subjective, they are generally prepared by officials with no motive to fabricate the results of the reports, and as a general rule, a medical examiner s office is not such a uniquely litigious and prosecution-oriented environment as to create an adversarial context.”).
We conclude that the approach set forth by the Maryland Court of Special Appeals provides the best balance between concerns that a examiner performing the autopsy is expressing opinions regarding causes of death or other disputed conclusions, which have not been subjected to cross-examination and concerns that no autopsy reports would ever be admissible without the testimony of their authors. Under such an approach, factual, routine, descriptive, and nonanalytical findings made in an autopsy report are nontestimonial and may be admitted without the testimony of the medical examiner. In contrast, contested opinions, speculations, and conclusions drawn from the objective findings in the report are testimonial and are subject to the Sixth Amendment right of cross-examination set forth in Crawford. Such testimonial opinions and conclusions should be redacted in the event that the medical examiner is unavailable. No denial of due process arises under this resolution because both parties are granted access to the objective findings of the autopsy report and both parties may proceed to obtain their own expert testimony, opinions, and conclusions based upon the objective findings of the medical examiner performing the autopsy.
Under the facts of this case, the cause of death was not a disputed fact; rather, the defense was concerned with how long the victim had been deceased. Although the autopsy report classified the offense as a homicide and listed the final anatomic diagnoses of pulmonary edema and congestion, it did not opine as to how long the victim had been deceased. The State’s expert, Dr. Mitchell, opined that the time of death was consistent with the State’s theory, relying on the autopsy report, photographs, the death certificate, and a toxicology report.
Although Dr. Eckert’s opinions regarding cause of death were included in the autopsy report, this evidence was cumulative. Dr. Clark, the coroner, personally observed the victim’s body and opined that the cause of death was strangulation and suffocation and that S.B. had been dead 6 to 8 days. As this opinion testimony had already been established by evidence other than the autopsy report, any error in the admission of Dr. Eckert’s statements as to the cause of death was harmless. See State v. Sims, 256 Kan. 533, 546, 887 P.2d 72 (1994) (doctor’s expert testimony based upon a different doctor’s report not admitted into evidence not error where bulk of testimony and conclusions based on evidence already presented by the defendant’s expert witnesses and by the defendant in open court).
Expert Testimony
K.S.A. 60-456(b) provides:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
The defendant does not dispute that Dr. Mitchell possessed the requisite special knowledge, skill, experience, or training to testify as an expert witness. Rather, the defendant takes issue with Dr. Mitchell’s opinion as to the time of death based upon facts or data which were not perceived or personally known to him. As Dr. Mitchell did not personally observe the crime scene or the autopsy, the information in the autopsy report was “facts or data . . . made known” to him at trial. “Knowledge made known to the witness refers to facts [admitted into] evidence.” Sims, 256 Kan. at 546.
As discussed above, the objective findings of the autopsy report were properly admitted into evidence. Additionally, Dr. Mitchell based his opinions and conclusions upon photographs, a toxicology report, and die death certificate which was prepared by the coroner who provided corroborating testimony at trial. Cf. Sims, 256 Kan. at 546. The district court did not abuse its discretion by admitting Dr. Mitchell’s expert testimony because it was based on facts or data made known to him at trial. The defendant’s argument fails.
c. Denial of Defense Request for a Continuance
Charges were filed against the defendant on December 6,2001. On November 19,2002, the first day of trial, the defendant moved for a continuance because he was unable to locate a witness, Joanne Hersfeld. The defense proffered that Hersfeld, a close friend of S.B., had called and spoken with S.B. on December 13, 1982, a few days after the defendant left Kansas. Hersfeld could also testify that Czarnowski’s demeanor at the funeral was inappropriate for someone who had just suffered such a personal loss. The State opposed the continuance, arguing that Hersfeld was not “real firm” that she had talked to the victim on that date and that the call did not appear on Hersfeld’s phone records.
The defense responded that Hersfeld would explain that her check with the telephone company revealed the possibility it was having computer billing problems at that point in time. Defense counsel told the district court that Hersfeld had been interviewed by law enforcement officers in Ellsworth in March 2001. The defense sent an investigator to Ellsworth at that time but was unsuccessful in locating her. Based on different leads, the defense had unsuccessfully searched for Hersfeld in Wichita, Kansas; Oregon; and Wyoming. The defense suspected that she was living with her brother-in-law in Castle Rock, Colorado, and had identified two individuals with matching names, but it had yet to make contact because the individuals did not have telephone service.
The district court denied the motion reasoning that the defense seemed to be saying it might be impossible to find the witness, that the defense knew about the witness for some time and had months to prepare for trial, and that some witnesses may have disappeared based on the age of the crimes. The district judge concluded, “Nothing I can do. I’m sorry it happened. Wish you had her here, but there’s nothing the Court can do. You’ve had months to look for her, she’s just not available.”
The defendant argues the district court violated his right to present a complete defense by denying his motion for a continuance. Under the state and federal constitutions, a defendant is entitled to present the theory of his or her defense and the exclusion of evidence that is an integral part of that theory violates a defendant’s fundamental right to a fair trial. However, the right to present a defense is subject to statutory rules and case law interpretations of the rules of evidence and procedure. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003).
K.S.A. 22-3401 provides that “[cjontinuances may be granted to either party for good cause shown.”
“In a criminal case, the granting or denial of a continuance rests in the sound discretion of the trial court. The ruling of the trial court will not be disturbed on appeal absent a showing of an abuse of discretion and a showing of prejudice to die substantial rights of the defendant. Discretion is abused only where no reasonable person would take the view adopted by the trial court.” State v. Snodgrass, 252 Kan. 253, Syl. ¶ 5, 843 P.2d 720 (1992).
The defendant relies primarily upon the following two cases in support of his argument. In Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377 (1974), an action by a real estate broker to recover a commission, the district court refused to grant a 1-day continuance when weather conditions prevented an expert witness from being present. The witness had not been subpoenaed because he was not a hostile witness. This court agreed that expert testimony regarding standards of the real estate industry concerning a “qualified buyer” was crucial and the denial of the continuance was prejudicial. 214 Kan. at 34.
In State v. Jones, 226 Kan. 503, 601 P.2d 1135 (1979), the identify of the defendant as one of the perpetrators of the robbery was a principal issue. An eyewitness who would testify that the robber had a noticeable goatee and no firearm failed to show up at trial. Defense counsel twice attempted to subpoena the witness through the sheriff, personally served a third subpoena on the witness, spoke with the witness and his family about his appearance and testimony, spent the noon recess searching for the witness, and requested a continuance until the next morning and a bench warrant so that the sheriff could find and bring the witness to the court. The district court mistakenly ruled that it did not have jurisdiction to issue the warrant. On appeal, this court found that defense counsel was diligent in seeking to obtain the witness’ testimony. We concluded that the witness’ testimony was crucial to the defense, since the defendant had presented evidence that the defendant was clean shaven at the time of the robbery, and the failure to grant a continuance was an abuse of discretion and prejudicial error. 226 Kan. at 509-10.
This case is distinguishable from Jones and Winkelman, where defense counsel had been in contact with the witnesses and were only requesting 1-day continuances. In contrast, defense counsel in this case had unsuccessfully attempted to locate the absent witness in several different states over a 20-month period and could not assure the court that the witness would ever be found. This case is more analogous to a case only incidentally cited by the defendant, State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280 (1976).
In Howard, the defendant issued two subpoenas for an alibi witness, but the sheriff was unable to find the witness. A typographical error was subsequently found in the address of the subpoena. A message was left with a family member, but the witness failed to appear at trial. The court granted a half-day continuance but denied the defendant’s request for a 2-week continuance. No showing was made of what the witness would say,“nor was there any indication that the witness could be reasonably expected to appear if a continuance was granted.” 221 Kan. at 54. In finding the district court did not abuse its discretion in denying the 2-week continuance, this court set forth the following test to be used when a continuance is requested to secure the attendance of a witness:
“When a continuance is requested during the trial of a case [to secure attendance of a witness], tire trial judge must weigh the many factors involved — possible prejudice to the defendant, the diligence (or lack of it) disclosed in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness’ appearance at a later date if the continuance is granted.” Howard, 221 Kan. at 55.
Application of the Howard factors to this case supports the district court’s decision. The proffered testimony that S.B.’s boyfriend was acting inappropriately at the funeral was not particularly relevant and would not establish, as the defendant suggests, that the boyfriend killed S.B. out of jealousy over the defendant. In contrast, the proffered testimony that the witness spoke with S.B. 2 days after when the State suggested S.B. had been murdered was material and important to refute the time of death. However, the State’s argument that the witness was not firm on what date she spoke with S.B. and that the call did not appear in the witness’ telephone phone records were also important factors to be considered.
The defense was essentially asking for an indefinite continuance the day of trial in this 20-year-old murder case. Two of the State’s witnesses had already died before trial. Several months had elapsed since the trial setting, and the defendant’s search for the absent witness had proved unsuccessful. The defendant’s inability to secure an out-of-state subpoena without a location suggested that the witness did not want to and probably would not be found. After weighing the Howard factors, it cannot be said that no reasonable person would have denied the motion for continuance. The district court did not err in denying a continuance and did not prejudice the defendant’s right to a fair trial.
d. Exclusion of Evidence Concerning Defense Theory of Consent
Prior to trial, the defense moved to admit evidence of prior sexual conduct of S.B. pursuant to K.S.A. 21-3525(b). At the in camera hearing, the defense sought to introduce evidence that (1) at the time of S.B.’s death, she was involved in a nonmonogamous sexual relationship with Czarnowski that included unprotected sexual intercourse and possibly anal intercourse on December 9,1982, and (2) two of S.B.’s former neighbors would testify that S.B. was willing to engage in spontaneous, voluntary sexual relations with other men. The defense argued this evidence was relevant to the defendant’s theory of consent and to explain the postmortem observations for S.B. The autopsy report indicated no signs of injury to S.B.’s vagina, anus, or the inner aspects of her legs.
The district court granted the motion regarding S.B.’s sexual relationship with Czarnowski around the time of the murder. However, the court refused to admit evidence regarding the defendant’s second request, reasoning that statements made by S.B.’s neighbors at a former residence 6 months to 1 year prior to the murder were not relevant.
The defendant argues that the district court erred by excluding such evidence. A district court’s decision to exclude evidence under the rape shield statute is subject to an abuse of discretion standard. However, the defendant is also claiming that he was denied his constitutional right to present a complete defense. When an appellate court is reviewing a constitutional challenge to the admission or exclusion of evidence, the appellate court applies the federal constitutional rule. Under that rule, an error may not be held to be harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. See State v. Atkinson, 276 Kan. 920, 925, 80 P.3d 1143 (2003).
The Kansas rape shield statute, K.S.A. 21-3525, provides that in a prosecution for rape:
“(b) . . .evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the juiy, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. . . . The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.”
“Under K.S.A. 21-3525, a rape victim’s prior sexual activity is generally inadmissible since prior sexual activity, even with the accused, does not of itself imply consent to the act complained of. The rape shield statute does allow evidence of a victim’s prior sexual conduct if it is proved relevant to any fact at issue.” Atkinson, 276 Kan. 920, Syl. ¶ 2.
The rape shield statute does allow evidence of a victim’s prior sexual conduct if it is proved relevant to any fact at issue, such as the identity of the rapist, the consent of the victim, or whether the defendant actually had intercourse with the victim. See 276 Kan. at 926. Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b).
The defendant argues the proffered evidence that the victim was prone to spontaneous sexual relationships with men was relevant because it contradicted the State’s theory that the motive for the rape and murder was the victim’s refusal to engage in a sexual relationship with the defendant and supported his defense of consent. He contends the policies of the rape shield statute would still be met through introduction of such evidence in this case. The defendant relies primarily upon the following two cases in support of his position.
In Atkinson, this court found the trial court violated the Confrontation Clause by excluding evidence that Atkinson and the victim had sexual intercourse the night before the alleged rape because it was highly relevant to explaining why Atkinson’s DNA matched the sperm found during the rape examination. 276 Kan. at 928-29.
In State v. Perez, 26 Kan. App. 2d 777, 780-83, 995 P.2d 372 (1999), rev. denied 269 Kan. 939 (2000), the Court of Appeals found the trial court erred in excluding evidence of the complaining witness’ sexual activities with two other men during the evening of the alleged rape pursuant to the rape shield statute. Applying the following relevancy factors, the court found that based on the proximity in time between the encounters, the distinctive pattern of the sexual behavior, and the lack of physical evidence connecting the defendant with the rape, the prior sexual conduct was relevant to credibility and consent. 26 Kan. App. 2d at 781-83. The Perez court stated:
“In a prosecution for sex offenses, when addressing whether prior sexual conduct of a complaining witness is relevant to the issues of consent and credibility, factors to be considered include: (1) whether there was prior sexual conduct by complainant with defendant; (2) whether the prior sexual conduct rebuts medical evidence on proof of origin of semen, venereal disease, or pregnancy; (3) whether distinctive sexual patterns so closely resembled defendant’s version of the alleged encounter so as to tend to prove consent or to diminish complainant’s credibility on the questioned occasion; (4) whether prior sexual conduct by complainant with others, known to the defendant, tends to prove he or she believed the complainant was consenting to his or her sexual advances; (5) whether sexual conduct tends to prove complainant’s motive to fabricate the charge; (6) whether evidence tends to rebut proof by the prosecution regarding the complainant’s past sexual conduct; (7) whether evidence of sexual conduct is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged; and (8) whether the prior sexual conduct and the charged act of the defendant are proximate in time.” 26 Kan. App. 2d 777, Syl. ¶ 3.
Application of these factors distinguishes this case from both Atkinson and Perez. None of the factors were met in this case. No evidence was presented that the victim had engaged in prior sexual conduct with the defendant, nor was any factual similarity established between the instant case and the victim’s alleged prior sexual conduct of being prone to having spontaneous, voluntary sexual relations with men. The victim’s alleged prior sexual conduct and the defendant’s charged act were not proximate in time, as those allegations were made by previous neighbors of the victim some 6 months to 1 year prior to the incident in this case. Cf. State v. Montes, 28 Kan. App. 2d 768, 774, 21 P.3d 592, rev. denied 271 Kan. 1040 (2001) (proximity factor not satisfied when prior conduct was 1-2 months earlier). Furthermore, physical evidence was presented in this case connecting the defendant to the victim.
The inability of the defendant to establish any of the above factors reveals his purpose in seeking to admit such evidence. The defendant sought to establish that S.B. had a propensity to engage in consensual sex with the defendant based on her alleged prior behavior, despite evidence that she had previously rejected his sex ual advances. This is the type of situation that the Kansas rape shield statute was designed to prevent:
“ ‘The Kansas [rape shield] statute merely serves to focus both judges’ and attorneys’ attention upon die fact tiiat die victim’s prior sexual activity is not generally relevant, reminding diem diat a victim’s lack of chastity has no bearing whatsoever on her truthfulness and generally has no bearing on the important issue of consent.’ ” (Emphasis added.) Atkinson, 276 Kan. at 926 (quoting In re Nichols, 2 Kan. App. 2d 431, 433-34, 580 P.2d 1370, rev. denied 255 Kan. 844 [1978]).
Although the victim’s death negated some of the policy concerns of the rape shield statute, its application was still important to prevent the jury from using irrelevant evidence of alleged sexual conduct in assessing whether the victim consented to the charged act. See also State v. Gonzales, 245 Kan. 691, 699-700, 783 P.2d 1239 (1989) (trial court properly excluded evidence under the rape shield statute that victim had a “propensity to establish her social acquaintances with males on a spontaneous basis” in a felony-murder and attempted rape prosecution).
We conclude that the district court did not abuse its discretion by excluding this evidence under the rape shield statute. Moreover, even if we were to conclude that the exclusion of this evidence was error, it is highly unlikely that this testimony would have had any effect on the outcome of the trial in light of the substantial evidence placing the defendant at the scene of the crimes, the DNA evidence establishing that the defendant’s semen was found in S.B., and the defendant’s abrupt unexpected departure from the Mission on the alleged night of the crimes.
e. Admission of Pre-Miranda Statements
The defendant filed a pretrial motion seeking to suppress statements he made to Agent Hagen while in custody. The district court denied his motion, and the defendant’s statements were admitted at trial. He claims that the district court erred.
“An appellate court reviews the district court’s decision regarding the suppression of a confession using a dual standard. The factual findings are reviewed using a substantial competent evidence standard. An appellate court will not reweigh the evidence and will give deference to the trial court’s factual findings. The ultimate legal conclusion drawn from the trial court’s factual findings is a question of law which is reviewed de novo. State v. White, 275 Kan. 580, 596-97, 67 P.3d 138 (2003). An appellate court accepts as true the evidence and all inferences drawn therefrom that support the trial court’s findings.” State v. Combs, 280 Kan. 45, 118, P.3d 1259 (2005).
Agent Hagen testified that he and Detective Forrester traveled to Sumpter County, Alabama, to interview tire defendant regarding the 1982 murder of S.B. and to determine whether he was the same individual who had an outstanding warrant out for his arrest. The Sumpter County Sheriff was asked to bring the defendant in for questioning. During this process, the sheriff drew a weapon on the defendant, told him he was under arrest, and transported him to the sheriff s department.
The defendant was placed in an office with Hagen and Forrester at the Sumpter County Jail. The defendant asked why they were there. Hagen responded by identifying himself, saying that he was from Kansas, and indicating that they were investigating a case in Kansas regarding an individual who was using his social security number. The defendant responded, “I've never been to Kansas.” Hagen informed him that they needed to read him his Miranda rights, they read through the Miranda waiver, and the defendant initialed each section and indicated he understood.
Before signing the document, the defendant asked again why the officers were there. Hagen told him that an individual named S.B. was found dead in Salina, Kansas, and that someone named Robert Moore, who was using the defendant’s social security number, had some connection with the case. The defendant said he did not know S.B., he did not know Robert Moore, and that he might have been in Wichita in 1969 or 1970 working as a cook after he got out of the Marines. Hagen asked the defendant if he would like to sign the waiver of rights form, and the defendant asked to talk with his girlfriend. After talking to his girlfriend, the defendant declined to sign the waiver and said he needed an attorney.
At that point, Hagen told the defendant that they had an arrest warrant for him and that Hagen had a photograph of the defendant from the relevant time period. He showed the defendant the photograph, said that the defendant was going to be maintained in Alabama, and asked the defendant if he wanted to be transported back to Kansas. The defendant said he was not making any statements until he talked to his attorney, and the conversation ended.
In its findings and conclusions, the district court held that the defendant’s statements were voluntary, spontaneous statements not elicited by an interrogation and the comments and actions of the officers did not amount to the functional equivalent of an interrogation. The court reasoned that Hagen had briefly explained why he was there in direct response to the defendant’s question and it was the defendant who contemporaneously blurted out his statements in an apparent attempt to exculpate himself.
The defendant argues the district court violated his Fifth and Fourteenth Amendment rights under the United States Constitution and § 10 of the Kansas Constitution Bill of Rights by admitting his pre-Miranda inculpatory statements because they were elicited by the functional equivalent of a custodial interrogation.
“The Fifth Amendment to the United States Constitution states that no person shall be compelled in any criminal case to be a witness against himself or herself, nor be deprived of life, liberty, or property without due process of law. [Citation omitted.] Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination. [Citation omitted.]
“Miranda warnings come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. [Citation omitted.] An objective standard is used to judge whether an interrogation was custodial. The proper analysis is how a reasonable person in the suspect’s position would have understood tire situation.” [Citation omitted.] State v. Hebert, 277 Kan. 61, 68, 82 P.3d 470 (2004).
No dispute exists that the defendant was in custody at the time he made the statements. Thus, our analysis focuses on whether the agent’s actions constituted an interrogation.
“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safe guards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice drat the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.” ’ Dudley, 264 Kan. at 643 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 [1980]).” Hebert, 277 Kan. at 69.
“ ‘It is well established that volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by the Miranda holding. [Citations omitted.] Moreover, an accused’s statement may be found to be voluntary and spontaneous and, thus, admissible even though it is made after the accused is arrested and in custody.’ ” [Citations omitted.] State v. Richardson, 256 Kan. 69, 86, 883 P.2d 1107 (1994) (quoting State v. Mooney, 10 Kan. App. 2d 477, 480, 702 P.2d 328, rev. denied 238 Kan. 879 [1985]).
The defendant contends that Hagen’s statements “were not routine booking questions” but were designed to elicit incriminating responses. He contends the first deceptive statement — that they were talking to him because someone named Robert Moore was using his social security number in Kansas — was designed to see if the defendant would admit that he was in fact the same person as Robert Moore. He further contends that a reasonable person would feel that Hagen was expecting a response from his second statement that Robert Moore had been involved in a homicide in Kansas.
The defendant relies primarily upon Hebert, in which this court found that the following comments made by a KBI agent prior to administering Miranda warnings constituted an interrogation:
“ ‘Talk to you a little bit and get both sides of the story. I’ve only heard one side of the story and, obviously, there’s always two sides of a story here and I’d like in your words, your input and tell me what happened and explain in your words and coming from you. Would you like the opportunity to tell me your side of the story?’ ” 277 Kan. at 67.
In Hebert, although the agent claimed that he was shocked that the defendant responded with an incriminating statement, this court clarified that it was not concerned with the agent’s subjective feelings but whether the officer should have known the words were reasonably likely to elicit an incriminating response. We reasoned that the officer should have known that the defendant, who had made no previous statement, who knew he had shot the officer, and who had been in custody for several hours, might be anxious to take him up on the request for his version of the events. We concluded that this was not a routine booking question but rather was designed to gain information from the defendant about the shooting. 277 Kan. at 70.
Likewise, in State v. Ninci, 262 Kan. 21, 936 P.2d 1364 (1997), during the first hour of the interview, the officers asked Ninci if he recognized a picture of the prime murder suspect and why his car was seen at the victim’s house the same week as the murder. We held that the officers should have known these questions were reasonably likely to elicit an incriminating response from Ninci and thus had been subjected to an interrogation. 262 Kan. at 36.
In contrast, we found no interrogation had occurred in the following cases. In State v. Payne, 273 Kan. 466, 44 P.3d 419 (2002), Payne asked why he was being taken into custody prior to being Mirandized, and the officer responded that it was due to a suspicious death. The officer asked Payne who owned the car he was removed from and Payne said it belonged to Eddie Harris. The officer asked how long Payne had possessed the car and he responded for about 3 days. Without being told that Harris was the murder victim, Payne asked, “ So Eddie Harris is dead?’ ” 273 Kan. at 468. The officer responded that Payne needed to talk to the detectives about that. This court concluded that Payne’s statements were not the result of interrogation and were made voluntarily. 273 Kan. at 479.
In State v. Ferguson, 254 Kan. 62, 864 P.2d 693 (1993), prior to administering Miranda rights, the officer introduced himself to Ferguson and asked her if she needed a drink of water, if she needed to use the restroom, and if she needed any medical assistance. She responded in the negative and then asked the officer “ ‘if [the victim] was dead.’ ” The officer responded, “ ‘Yes, and’ ” Ferguson said, “ ‘Didn’t mean to kill him,’ ” “ ‘Didn’t want to,’ ” and “ ‘I’m tired of this,’ ” or “ ‘I’m tired of it.’ ” 254 Kan. at 64, 84-85. This court concluded that Ferguson’s various statements were not the result of interrogation and appeared to be more voluntary than involuntary and more spontaneous than not. 254 Kan. at 85.
In State v. Jones, 222 Kan. 56, 563 P.2d 1021 (1977), Jones and Miller were placed in a line-up after they were arrested. After the line-up, Jones initiated an exchange with a police officer by asking if either he or Miller had been identified. When the officer answered, “ ‘Yes,’ ” Jones stated, “ ‘Miller wasn’t with me on the robbery.’ ” 222 Kan. at 60. This court upheld the district court’s admission of the statement on the ground that there was substantial competent evidence that “[t]he statement was not the product of an interrogation, but resulted from a conversation initiated by defendant.” 222 Kan. at 60.
This case is distinguishable from the exchanges found to be interrogations in Hebert and Ninci and is more analogous with those in Payne, Ferguson, and Jones. The agent in this case did not ask the defendant any questions. The defendant initiated the statements by repeatedly asking why the officers were there. The agent’s statements to the defendant were in direct response to questions initiated by the defendant, and they were simply a description of the officers’ investigation. As noted by the district court, it was the defendant who voluntarily and spontaneously blurted out his statements in an apparent attempt to exculpate himself.
Although the defendant characterizes the agent’s first statement as deceptive, it was a true statement demonstrating how the events had progressed which led the law enforcement officers to Alabama. The agent did not initially say he was investigating a homicide case because that has a tendency to shock people. The agent’s explanations of why they had contacted the defendant were not reasonably likely to elicit an incriminating response from the suspect.
We conclude that the factual findings of the district court are supported by substantial competent evidence and support its legal conclusion regarding admissibility. We hold that the district court properly admitted the defendant’s pre-Miranda statements into evidence.
f. Testimony Concerning S.B.’s Mother’s Absence at Trial
Sandy Van Fleet testified that her sister, the victim, would generally call home about two or three times a week, that the last time she called home was on December 10,1982, and that their mother had tried to call S.B. several times over the next week but did not get a response. Van Fleet’s testimony about what her mother said regarding the failed attempts was not permitted based upon hearsay grounds. The following relevant exchange then occurred:
“Q. [Prosecutor:] The best of your knowledge, did anyone in your family ever see her or speak with her after December 10, 1982?
“A. [Witness Van Fleet:] No.
“Q. And, is your mother still living?
“A. Yes.
“Q. Is she here at this trial?
“A. No.
“Q. Why? Why isn’t she?
“[Defense:] I’m going to object to relevance, Your Honor.
“[Counsel:] Overruled.
“Q. [Prosecutor:] Why isn’t she here?
“A. [Witness:] Due to physical and mental. She couldn’t handle it.”
The defendant argues this line of questioning had nothing to do with the issues of whether the defendant had consensual sex with or killed the victim. Rather, he contends this testimony was introduced solely to inflame the passions of the juiy and prejudiced his right to a fair trial.
According to K.S.A. 60-407(f), all relevant evidence is admissible, except as otherwise provided. See K.S.A. 60-401(b); State v. Groschang, 272 Kan. 652, 667, 36 P.3d 231 (2001). “The determination of relevancy is a matter of logic and experience, not a matter of law. Nevertheless, there must be some material or logical connection between collateral facts and the inference or result they are supposed to establish for them to be competent.” State v. Pennington, 276 Kan. 841, 847, 80.P.3d 44 (2003).
Once relevancy is established,
“[t]he admission and exclusion of evidence lies within the sound discretion of the trial court. Appellate courts review the trial court’s admission of evidence for abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, or in other words, when no reasonable person would have taken the position that was taken by the trial court.” Hebert, 277 Kan. 61, Syl. ¶ 9.
The defendant relies primarily upon State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998). In that case, the primary issue was whether the defendant killed a police officer with premeditation. At trial, the victim’s widow was permitted to testify in detail about the victim’s personality and accomplishments and his relationship with her, other family members, and friends. The testimony spanned 28 pages of the transcript. The prosecutor referred to this testimony at length during opening and closing arguments. We found the testimony was “irrelevant, prejudicial, and inflammatoiy,” was not relevant to any material fact charged, and was intended to improperly influence the jury and prejudice the defendant’s right to a fair trial. 265 Kan. at 84-85.
The Donesay court applied a dual test in determining whether the admission of such testimony was harmless:
“First, we must determine if the admission of the evidence was inconsistent with substantial justice, i.e., whether substantial rights of defendant were affected by the admission of [the widow’s] testimony. Second, if not, can we declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial?” 265 Kan. at 88.
The court concluded that the testimony affected the defendant’s right to a fair and impartial trial and reversed the convictions. 265 Kan. at 88-89.
Van Fleet’s testimony in this case is clearly distinguishable from the extensive prejudicial testimony in Donesay. It consisted of one short statement explaining that S.B.’s mother was not at the trial because she could not physically and mentally handle being there. The prosecutor asked no follow-up questions, and Van Fleet did not elaborate on her statement. Evidence regarding the last time S.B.’s mother talked to the victim alive was relevant to estabhshing the time frame for the murder. Since S.B.’s sister rather than her mother was testifying, the question (and answer) was a logical follow-up as to why S.B.’s mother was not testifying about the telephone calls in light of the hearsay objection. The district court did not abuse its discretion in admitting this evidence.
Moreover, even if we were to find that the testimony was erroneously admitted, it cannot be said that the defendant’s substantial rights were affected or that the error had any likelihood of changing the result of the trial. The defendant suggests that Van Fleet’s testimony was of such an inflammatory nature that it contributed to the convictions. See State v. Eaton, 244 Kan. 370, 385-86, 769 P.2d 1157 (1989), overruled in part on other grounds State v. Chisholm, 250 Kan. 153, Syl. ¶ 4, 825 P.2d 147 (1992). He reasons that because Van Fleet’s testimony did not contradict his theory of events, i.e., that he had consensual sex with S.B. and S.B. was alive when he left town, it was likely that the jury was irreparably prejudiced against him by virtue of its verdicts.
The defendant’s argument is without merit. It is unlikely that the one sentence response during a 3-day trial affected the substantial rights of the defendant. The defendant admits that the statement did not refute his theory of defense, and the statement had no connection to any material facts of the case. The fact that the jury did not believe the defendant’s version of events is more readily attributable to the DNA evidence recovered from S.B.’s body and his abrupt departure than to this solitary statement regarding the absence of S.B.’s mother. As the defendant’s substantial rights were not violated and no reasonable likelihood exists that the outcome of the trial would have been different, we conclude that any error in the admission of the statement was harmless.
g. Cumulative Trial Error
“Cumulative trial errors may require reversal of a defendant’s conviction if the totality of the circumstances shows they substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if tire evidence is overwhelming against the defendant.” Hebert, 277 Kan. 61, Syl. ¶ 13.
The defendant argues that cumulative trial errors substantially prejudiced his right to a fair trial. As discussed above, the only clear trial error was the district court’s admission of the deceased cab driver’s description of the fare he picked up on the alleged night of the incident and possibly the victim’s sister’s solitary statement as to why their mother was not at trial. In light of the overwhelming DNA evidence, testimony placing the defendant at the scene of the crimes, and the defendant’s unexpected departure the alleged night of the incident, the defendant was not substantially prejudiced by these trial errors.
h. Failure to Prove Prior Convictions Under the Habitual Criminal Act
At sentencing, the State submitted certified copies of a journal entry from a North Carolina case where “Robert H. Lackey, Jr.” pled guilty to the felony crime of assault with intent to commit rape in November 1970 and a journal entry from a Florida case where “Robert H. Lackey, Jr.” pled guilty to assault with intent to commit sexual battery in February 1977. The Florida journal entry contained fingerprints; however, no evidence was presented that the fingerprints matched those of the defendant. The defense objected to the admission of the journal entries on the grounds that they failed to meet the proper form and failed to identify that the person named in the journal entries was in fact the defendant. The court asked if the defendant was contesting that he was die same person named in the journal entries and defense counsel responded, “He is.”
Regarding identity, the State responded that the defense did not give any notice that it intended to object to identity during the presentence investigation and cited State v. Baker, 237 Kan. 54-55, 697 P.2d 1267 (1985), for the proposition that a properly authenticated journal entry of prior conviction for a person with die same name is sufficient. The district court overruled the objections and admitted the journal entries. The defendant’s rape conviction carried a minimum term of 5 to 15 years and a maximum prison term of 20 years to life. K.S.A. 21-3502(2) (Ensley 1981); K.S.A. 1982 Supp. 21-4501(b). Utilizing the prior convictions, the court tripled the defendant’s minimum sentence from 15 to 45 years, giving him an enhanced sentence of 45 years to life as a habitual criminal under K.S.A. 1982 Supp. 21-4504(b).
On appeal, the defendant argues the district court erred by invoking the HCA to triple his sentence for rape when the State failed to prove that he was the same person who received the prior convictions. “Whether a criminal sentence is illegal is a question of law, and an appellate court has unlimited review of questions of law.” State v. Walker, 277 Kan. 849, Syl. ¶ 1, 89 P.3d 920 (2004).
“It is a fundamental rule that a person convicted of a crime is given the sentence in effect when the crime was committed, including any applicable Habitual Crim inal Act penalties.” Walker, 277 Kan. 849, Syl. ¶ 2. K.S.A. 1982 Supp. 21-4504 provided in relevant part:
“(b) If a defendant is convicted of a felony a third or subsequent time, die trial judge shall sentence the defendant as follows, upon motion of the prosecuting attorney:
(1) The court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence authorized by K.S.A. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and
(2) the court may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.
“(e) A judgment may be rendered pursuant to this section only after die court finds from competent evidence the fact of former convictions for felony committed by the prisoner, in or out of the state.”
The defendant argues the State failed to meet its burden of producing competent evidence of the contested prior convictions under the HCA. He relies on cases in which the appellate courts disapproved of proof of prior convictions under the HCA by Federal Bureau of Investigation and Kansas Bureau of Investigation “rap sheets” and a statement made to a court services officer. See Tuscano v. State, 206 Kan. 260, 264-67, 478 P.2d 213 (1970); State v. Taylor, 198 Kan. 290, 299-300, 424 P.2d 612 (1967); State v. Hicks, 11 Kan. App. 2d 76, 86-88, 714 P.2d 105 (1986). However, those cases are distinguishable from the present case in which certified copies of the two journal entries were submitted to the court.
The issue boils down to whether the defendant’s name on the journal entries was sufficient to prove identity when he contested the fact that he was the same person named in the journal entries without providing any supporting evidence. “It is a well-established rule that identity of name is prima facie evidence of identity of person, and it devolves upon those who deny the identity to overcome the presumption by proof.” Bayha v. Mumford, 58 Kan. 445, 446, 49 Pac. 601 (1897). “Generally, proof of prior felony convictions to invoke the Habitual Criminal Act [K.S.A. 21-4504] is made by using certified or authenticated copies of journal entries of convictions from other states or counties. This is the best possible evidence of a prior felony conviction . . . .” State v. Maggard, 16 Kan. App. 2d 743, 753, 829 P.2d 591, rev. denied 251 Kan. 941 (1992).
“Absent a denial of identity or rebuttal evidence, proof beyond the identity of the name in the document is not required for admission of the evidence. State v. Cippola, 202 Kan. 624, 629, 451 P.2d 199, cert. denied 396 U.S. 967 (1969).” (Emphasis added.) State v. Greever, 19 Kan. App. 2d 893, 900, 878 P.2d 838 (1994). However, the Cippola court went on to state that the better practice dictates that where the question of the identity of the defendant on trial is raised with respect to prior convictions of similar offenses under K.S.A. 60-455, the State should offer evidence showing that the defendant is the same person who was previously convicted. 202 Kan. at 629-30.
The State’s reliance upon Baker at the trial court level for the proposition that certified copies of prior convictions are sufficient to prove a defendant’s prior convictions was misplaced, as we limited its holding to situations where a defendant does not contest identity:
“While defendant objected to the evidence introduced by the State on technical grounds, he did not then contend that he is not the same person named in the Shawnee County journal entry by which the State introduced competent evidence of a prior felony conviction of the accused; he did not dispute or refute the evidence. We conclude that the trial court did not err in finding that the defendant had a prior felony conviction.” Baker, 237 Kan. at 55.
Likewise, the State’s reliance upon Greever, presents a similar problem. In Greever, the defendant argued the journal entries of conviction alone were not sufficient evidence to prove that Greever had committed the prior crimes where he did not concede the issue of identity. The court noted that Greever did not deny he was the same person named in the journal entries, that his attorney noted that Greever had committed the offenses, and that his attorney only argued that the State had not proved that he was the same defendant as listed in the journal entries. The Court of Appeals concluded that “[gjiven the similarity in names, the admissions by Greever’s counsel, the lack of denial of identity, and the failure to provide any rebuttal evidence as to identity, admission of these journal entries as evidence of prior convictions was not an abuse of judicial discretion.” 19 Kan. App. 2d at 901.
In State v. Maggard, 24 Kan. App. 2d 868, 877-79, 953 P.3d 1379, rev. denied 264 Kan. 823 (1998) (Maggard II), on subsequent appeal, the Court of Appeals relied upon Greener in finding certified and authenticated copies of complaints and journal entries were sufficient to prove criminal history under the HCA where defense counsel merely asserted evidence was insufficient to establish identity rather than denying identity; presented no rebuttal evidence to overcome the presumption of similar names in the journal entries; and corroborating evidence existed in the presentence report. Baker, Greener, and Maggard II are thus all distinguishable from this case where the defendant specifically denied being the same person identified in the journal entries of the prior convictions.
While not directly on point, State v. Staven, 19 Kan. App. 2d 916, 881 P.2d 573 (1994), provides better guidance on this issue. In Stanen, the Court of Appeals found that the Kansás Sentencing Guidelines Act (KSGA), see K.S.A. 21-4724(c)(4), requires the State to prove prior convictions by at least as much as was required to be proven under the HCA; “[a] certified or attested copy of a journal entry of conviction is sufficient proof of a prior offense unless the defendant denies he or she is the same person named in the prior felony journal entry.” (Emphasis added.) 19 Kan. App. 2d at 918. Although the State had proven the prior convictions by certified journal entries, the court found that Staven’s counsel had raised the issue of identity with respect to the prior convictions by stating: “ 1 think there’s certainly a question as to whether we’re talking about the same person.’ ” 19 Kan. App. 2d at 919. See also State v. Presha, 27 Kan. App. 2d 645, 646-47, 8 P.3d 14, rev. denied 269 Kan. 939 (2000) (“Generally, prior felony convictions to invoke the HCA are proven by certified or authenticated copies of the journal entries of conviction. . . . However, if the defendant disputes identity, the State may have to produce additional evidence.” [Emphasis added.]); State v. Hankins, 19 Kan. App. 2d 1036, 1049, 880 P.2d 271 (1994) (“Under the Habitual Criminal Act, a certified or attested copy of a journal entry of conviction constituted suffi cient proof of a prior offense in the event a defendant did not deny identity.” [Emphasis added.]).
The State acknowledges that defense counsel briefly stated the defendant was contesting identity but argues that the two certified journal entries were sufficient competent evidence to prove the prior convictions because the defendant offered no rebuttal evidence. This argument fails for three reasons.
First, our previously discussed case law provides that certified journal entries are sufficient to prove prior convictions absent a denial of identity or rebuttal evidence. Our use of the term “or” rather than “and” demonstrates that the defendant need not do both in order to require the State to provide more evidence. Second, the State is seeking to shift the burden of proof to the defendant when “[d]ue process requires that the State prove the existence of prior convictions in every essential particular, unless admitted by the defendant, before the prior convictions can be used to enhance the sentence.” State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). Finally, as in Staven, while concisely stated, defense counsel indicated that the defendant was contesting that he was the same person named in the journal entries. The Staven court found defense counsel’s brief statement about identity with no mention of rebuttal evidence sufficient to contest identity.
In this case, the defendant contested that he was the same person named in the out-of-state journal entries, but the State presented no corroborating evidence to support its contention. Although the Florida journal entry contained identifying fingerprints, the State did not present testimony that the fingerprints contained in the documents matched the defendant in this case. The defendant did not have the burden to put forth rebuttal evidence regarding his challenge to identity. As such, competent evidence did not support a finding that the defendant had prior convictions to enhance his sentence under the HCA. The defendant’s sentence is vacated, and the case is remanded for resentencing.
i. Constitutionality of HCA after Apprendi
The defendant argues his constitutional rights were violated at sentencing when the court tripled his sentence pursuant to the HCA based on his prior convictions which were not included in the complaint, presented to the jury, or proven beyond a reasonable doubt based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The constitutionality of the HCA involves a question of law over which this court has unlimited review. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2001). In Ivory, this court found that Apprendi does not apply where the sentence imposed was based in part on the defendant’s criminal history score under the KSGA:
“The KSGA builds criminal history into the calculation of a presumptive sentence, rather than using criminal history as an enhancement. The determination of a felony sentence is based on two factors: the current crime of conviction and the offender’s prior criminal history. The sentence contained in the grid box at the juncture of the severity level of the crime of conviction and the offender’s criminal history category is the presumed sentence. [Citations omitted.]
“In Apprendi, the United States Supreme Court said: ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.’ 530 U.S. at 490. The prior conviction exception was derived from the holding 2 years earlier in Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998). There, the court concluded that the fact of a prior conviction is a sentencing factor and not an element of the crime. Thus, the prior conviction need not be presented in the indictment and proven to a jury in order to be used by the court to increase the sentence imposed. 523 U.S. at 226-27.” Ivory, 273 Kan. at 46.
As the defendant does in this case, Ivory argued that Apprendi raised serious doubts about the constitutionality of Almendarez-Torres, and we cited several cases from other jurisdictions which held that Apprendi did not overrule Almendarez-Torres. Ivory, 273 Kan. at 46-47. Relevant to this case, we cited the following from United States v. Paycheck-Zepeda, 234 F.3d 411, 414-15 (9th Cir. 2001):
“ ‘Although Apprendi does refer to die fact that the defendant in Almendarez-Torres did not challenge the accuracy of his prior convictions, nowhere does Apprendi limit Almendarez-Torres to cases where a defendant admits prior aggravated felony convictions on the record. [Citation omitted.] To the contrary, Apprendi held that all prior convictions — not just those admitted on tire record— were exempt from Apprendi s general rule and, under Almendarez-Torres, may continue to be treated as sentencing factors.’ ” (Emphasis added.) Ivory, 273 Kan. at 47.
The defendant distinguishes the KSGA from the HCA where the indeterminate sentencing provisions did not require criminal history to be taken into account at sentencing but were only considered upon motion of the prosecuting attorney. See K.S.A. 1982 Supp. 21-4501; K.S.A. 1982 Supp. 21-4504. He argues criminal history is not mechanically applied to compute an offender s sentence under the HCA but is used to enhance the maximum sentence under indeterminate sentencing. He argues that the United States Supreme Court would now decide Almendarez-Torres differently based on Apprendi. However, the defendant’s argument fails in light of the following recent cases.
In Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), the United States Supreme Court held that the state trial court’s sentencing of the defendant to more than 3 years above the 53-month statutory maximum of the standard range for his offense, on the basis of the sentencing judge’s finding that the defendant acted with deliberate cruelty, violated his Sixth Amendment right to a trial by jury. In so finding, the majority identified its analysis as an application of the Apprendi rule: “Other than the fact of a prior conviction ...” and concluded that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 301-03.
In United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005), the Court applied the principles of Apprendi and Blakely to the mandatoiy provisions of the federal sentencing guidelines and found them unconstitutional as far as they required judges to find facts by a preponderance of the evidence for the imposition of aggravated sentences. To remedy the constitutional infirmity created by applying judge-found facts to the guidelines, the Court severed the provision of the federal sentencing statute that made application of the guidelines mandatory. However, the Court specifically reaffirmed its holding in Apprendi: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (Emphasis added.) 543 U.S. at 244.
In Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005), the Supreme Court held that a trial court may not look to police reports or complaint applications of a prior plea to determine if the prior conviction constituted a violent felony so as to be used to enhance a sentence under the Armed Career Criminal Act, see 18 U.S.C. § 924 (2000), but it may examine the statutoiy definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. The Court reasoned in part that while the disputed fact may be described as a fact about a prior conviction, “it is far too removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” 544 U.S. at 25.
In a concurring opinion, Justice Thomas opined: “Almendarez-Torres, like Taylor, has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. [Citations omitted.] The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres continuing viability.” 544 U.S. at 27-28 (Thomas, J., concurring).
Since Blakely, Booker, and Shephard were decided, the Tenth Circuit Court of Appeals has repeatedly rejected arguments such as those raised by the defendant in this case questioning whether a prior conviction may continue to be a judicially recognized fact under Almendarez-Torres. See United States v. Williams, 403 F.3d 1188, 1198 (10th Cir. 2005) (for purposes of sentencing under the Armed Career Criminal Act provisions of § 924, the government need not charge the fact of a prior conviction in an indictment and submit it to a jury after Booker, Blakely, & Shephard); United States v. Gonzalez-Huerta, 403 F.3d 727, 731 n.l (10th Cir. 2005) (“[T]he holding in Booker envisions Almendarez-Torres as good law .... We believe that any reconsideration of Almendarez-Torres must be conducted by the Supreme Court.”); United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005) (“Although the Court may overrule Almendarez-Torres at some point in the future, it has not done so, we will not presume to do so for the Court, and we are bound by existing precedent to hold that the Almendarez-Torres exception to the rule announced in Apprendi and extended to the [federal] Guidelines in Booker remains good law.”); see also United States v. Aguirre-Leon, 2005 WL 806700, *3 n.1 (D. Kan. 2005) (unpublished opinion filed April 7, 2005) (applying Moore in holding Almendarez-Torres remains good law after Booker); Lopez v. People, 113 P.3d 713, 723 (Colo. 2005) (“Although there is some doubt about the continued vitality of the prior conviction exception, we conclude that it remains valid after Blakely.”).
Regardless of whether the prior convictions are built into the criminal history score under the KSGA or used on motion of the prosecutor under the HCA, the prior convictions enhance the defendant’s sentence beyond what he would have received in the absence of those prior convictions. Booker, Blakely, Apprendi, Williams, Gonzalez-Huerta, Moore, Aguirre-Leon, Lopez, and Ivory, all provide the fact of a prior conviction does not have to be submitted to a jury to be proved beyond a reasonable doubt. The HCA scheme requires that the district court find competent evidence of the prior convictions, and due process requires the State to prove the existence of the prior convictions in every essential particular, unless admitted by the defendant, before the prior convictions can be used to enhance a sentence. Jones, 272 Kan. at 677. The fact that the State did not have to prove the prior convictions beyond a reasonable doubt does not make the use of the prior convictions violative of due process. Where substantial competent evidence does not establish the prior convictions, as discussed above, the district court is without authority to use them at sentencing under the HCA.
As stated in by this court in Ivory: “Counsel has not cited a case nor has our research discovered one extending Apprendi to hold that increasing a sentence based on the fact of prior convictions is unconstitutional.” 273 Kan. at 47. The use of prior convictions under the HCA is not unconstitutional under Apprendi.
Convictions affirmed, sentence vacated, and case remanded for resentencing.
Gernon, J., not participating.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Lockett, J.:
Christopher M. Trotter appeals his convictions for first-degree premeditated murder, capital murder, aggravated robbery, and conspiracy to commit aggravated robbery. Trotter argues that (1) the trial court should have given an instruction regarding eyewitness identification; (£) the trial court erroneously admitted evidence that a victim was pregnant; (3) he was denied a fair trial because the State used nine peremptory strikes to eliminate 9 of the 10 African-Americans from the jury; and (4) the evidence was not sufficient to support his convictions.
FACTS
Just before daybreak on May 21, 2001, Christopher Trotter (Trotter), Virdal Nash, Kevin Eddington, and Michael Navarre were crouched in the woods behind the duplex of James Darnell Wallace and his wife Traylennea Huff in Kansas City, Kansas. Dressed in dark colors to avoid detection, the four were waiting for an opportunity to enter the duplex and rob the occupants of an expected $100,000. A fifth accomplice, James Trotter (James), was parked nearby in a gold Saturn owned by Trotter s girlfriend. James was to be positioned down the road as a lookout, watching for police. James was in contact with Trotter via two-way radios.
Led by Trotter, the five had spent the previous day devising a plan for the robbery. According to the plan, Nash and Navarre were to enter into the half of the duplex that they believed to be occupied by Wallace’s mother and prevent her from calling the police. Trotter and Eddington were to enter Wallace and Huff s side of the duplex, yell, “ATF,” bind the victims with zip-ties, take the money, and leave.
Because Trotter and Nash knew Wallace and Huff, the four intruders planned to wear something that covered their faces. Trotter, Nash, and Eddington had t-shirts to tie around their heads. Navarre had a Scream mask to cover his face. Each wore gloves to avoid leaving fingerprints. As a show of force, Trotter was armed with Nash’s .38 caliber, semi-automatic pistol, and Navarre had Trotter’s nonfunctioning assault rifle.
When the four first arrived at the duplex, Trotter and Eddington checked the doors to see if they could bréale in. After they discovered that they could not break in through the doors, Trotter pulled out the phone line, and then the two returned to the woods to wait with Nash and Navarre. Before there was an opportunity for the four to enter the duplexes, Nash received a call from his wife asking him to bring her car home so she could go to work. While the others remained outside the duplex waiting for their opportunity to get in, Nash left to take the car to his wife.
Just as it was becoming daylight, but before Nash had returned, Wallace opened the garage door to take his dog out. Trotter ran toward the house followed by Eddington and Navarre. Trotter ordered Wallace to freeze. When Wallace began wrestling with Trotter over the gun, Eddington and Navarre ran past them into the garage and up the stairs into the house. At one point, Eddington looked back, observed Wallace remove the t-shirt from Trotter’s face, and heard Wallace say to Trotter, “[C]ome on, Chris, you ain’t got to do it.”
Eddington and Navarre encountered Huff on the stairs. Huff screamed, “I’m pregnant, don’t hurt me.” Eddington bound Huff s hands with a zip-tie, then Navarre asked her where the money was hidden. Huff stated that the money was in her bedroom under the bed. Eddington and Navarre then proceeded into the bedroom. Navarre looked under the bed for the money. Huff returned to the bed and laid down next to her 2-year-old daughter Janae, who had been sleeping in the bed with her mother.
While Navarre was searching for the money, he heard a gunshot. Navarre quickly located the money under the bed and gave it to Eddington. When a second gunshot sounded, Eddington and Navarre ran from the room, down the stairs, out of the garage, and headed back through the woods to where Nash had previously parked the car. As he was going down the stairs, Navarre passed Trotter, who was headed up the stairs. After Navarre was in the woods, he heard another gunshot. Then Trotter came running up behind Navarre.
After returning the car to his wife, Nash had changed into his work uniform and driven his ADT company van back to the area where he had been parked for the robbery. Shortly after Nash arrived, he observed Eddington, Trotter, and Navarre running towards him. After the three jumped into Nash’s ADT van, Nash drove away.
Once inside the van, Trotter mumbled, “Look what you made me do. He should have just laid down. All he had to do was just lay down. I wouldn’t have had to kill him. He wouldn’t have to get killed.”
James followed them in the gold Saturn. When they arrived at Nash’s house, Eddington counted $4,000 as the spoils from the robbery. The five divided it equally, each taking $800. Nash then disposed of the clothes and the weapons.
Damante Huff, Wallace and Huff s 8-year-old son, informed the police that he awoke to noises in the house. He heard his mom say, “I’m pregnant. I swear to God it’s in there.” Damante got up from his bed and looked out of his bedroom door. A man in the hallway with his mother pushed him back into his room. Damante returned to his bed, but he could see another man who appeared to be fighting with his father on the stairs. Damante heard his father say, “Chris.” Then, Damante heard gunshots.
Damante stayed in his bed until eveiything was quiet. Damante, followed by his 7-year-old sister, Ebony, went to his parents’ room. Damante asked his mother where his father was. Huff did not respond. Huff had been killed by a point-blank gunshot in the back of her head. Janae was awake and shaking next to her mother’s body. Damante picked Janae up and ran out of the house with his two sisters. As Damante ran out of the garage, Damante observed his father slumped over the neighbor’s car. Wallace was dead. He had been beaten, then shot twice, once in the face and once in the back of the head. Damante and his sisters ran to a nearby friend’s house. His friend’s mother called the police.
During the investigation, Damante told police that his father’s friend Chris did it. Police then asked Wallace’s mother, Marva Wallace, who her son knew named Chris. Marva informed the officers that her son knew a Chris Trotter. Wallace had gone to high school with a Trotter in Leavenworth. Officers soon connected Trotter with Nash, Eddington, Navarre, and James.
Nash, Eddington, and Navarre entered into plea agreements, with each of them agreeing to plead guilty to one count of aggravated robbeiy and one count of conspiracy to commit aggravated robbery. In addition, they each agreed that the sentences for those crimes would be run consecutively. Pursuant to the agreements, Nash was sentenced to a total of 95 months in prison, Eddington was sentenced to 111 months in prison, and Navarre was sentenced to 95 months in prison. As part of the plea agreements, Nash, Eddington, and Navarre agreed to testify against any and all co-defendants. In exchange for their pleas, the State agreed to drop the murder charges, preventing Nash, Eddington, and Navarre from facing the possibility of life in prison or the death penalty.
Trotter was charged with first-degree premeditated murder for killing Wallace, capital murder for killing Huff, aggravated robbery, and conspiracy to commit aggravated robbeiy. The State sought the death penalty for the capital-murder charge. At trial, Nash, Eddington, and Navarre testified against Trotter and identified him as the shooter. The only physical evidence linking Trotter to the crimes was his fingerprints on the batteries in a flashlight found in the grass behind Wallace and Huff s duplex. A jury convicted Trotter of all charges but refused to impose the death penalty.
The district judge sentenced Trotter to concurrent hard-50 life sentences for both of the murder convictions and ordered that Trotter serve 79 months for the aggravated robbery conviction and 32 months for the conspiracy conviction. Each of those sentences was to run concurrent with his hard-50 life sentence.
Trotter appeals his convictions to this court pursuant to K.S.A. 22-3601(b)(l), raising four issues. Trotter claims (1) the trial court should have given an instruction regarding eyewitness identification; (2) the trial court erroneously admitted evidence that Huff was pregnant; (3) he was denied a fair trial because the State eliminated 9 of the 10 African-Americans on the jury; and (4) the evidence was not sufficient to support his convictions.
I. Failure to give an instruction regarding eyewitness identifications
Trotter claims that the trial court should have given the juiy the following eyewitness identification instruction:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect the accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at the time, including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant(s) on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.” PIK Crim. 3d 52.20.
Trotter claims that he requested an eyewitness identification instruction, and therefore this court is required to view the evidence in a light most favorable to him. See State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004) (requiring the court to evaluate a requested instruction in a light most favorable to the defendant). First, we note that Trotter did not request the PIK instruction he now claims was necessary. Rather, Trotter requested the following instruction:
“Credibility of Witnesses
“In deciding the facts of this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
“In considering the testimony of any witness, you may take into account:
“1. the opportunity and ability of the witness to see or hear or know the things testified to;
“2. the witness’ memory;
“3 the witness’ manner while testifying;
“4. the witness’ interest in the outcome of the case and any bias or prejudice;
“5. whether other evidence contradicted the witness’ testimony;
“6. the reasonableness of the witness’ testimony in light of all evidence; and
“7. any other factors that bear on believability.
“The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.”
We have previously noted that the reliability of an eyewitness identification is not the same as the credibility of a witness. State v. Calvin, 279 Kan. 193, 206, 105 P.3d 710 (2005); State v. Mann, 274 Kan. 670, 678-79, 56 P.3d 212 (2002). Trotters requested instruction addresses witness credibility rather than eyewitness reliability. Thus, the instruction Trotter requested is not equivalent to the instruction he now claims as error on appeal.
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 2000 Supp. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Saenz, 271 Kan. 339, 346, 22 P.3d 151 (2001).
The instruction Trotter requested applies to witness credibility in general and does not contain the factors for considering the reliability of eyewitness identifications. Thus, the instruction Trotter requested is not an eyewitness identification instruction and the proper standard of review is clearly erroneous. Trotter now relies on State v. Hunt, 275 Kan. 811, 69 P.3d 571 (2003), for the proposition that the court must give an eyewitness identification instruction if identification is a central issue in the case.
In Hunt, the court considered the propriety of a one-person show-up eyewitness identification procedure. The Hunt court refined the process for evaluating the reliability of eyewitness identifications, stating that “where such identification is a central issue in a case, a cautionary instruction regarding eyewitness identification should be given.” (Emphasis added.) 275 Kan. at 818. However, the Hunt court did not consider when the failure to give such an eyewitness instruction constituted reversible error. Therefore, Hunt does not stand for the proposition that a court must give an eyewitness identification instruction any time a witness makes an in-court identification, regardless of whether the defendant requests the instruction or not. Trotter’s reliance on Hunt to circumvent the clearly erroneous standard of review is misplaced.
Trotter also relies on State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), to support his assertion that an eyewitness identification instruction must be given whether the defendant requests one or not. In Warren, the defendant was charged with attempted aggravated robbery. An alleged accomplice testified against Warren, and one of the victims identified Warren at trial. Warren then attempted to admit expert testimony regarding the lack of reliability for eyewitness identifications, and his request for an eyewitness identification instruction was denied by the trial judge. The Warren court reversed the defendant’s conviction based on other grounds unrelated to the victim’s in-court identification. 230 Kan. at 389.
Nevertheless, the Warren court addressed the admission of expert testimony on eyewitness identifications and the defendant’s request for an eyewitness identification instruction. The Warren court concluded that an eyewitness identification “instruction should, be given in any appropriate case.” (Emphasis added.) 230 Kan. at 400. However, we note that Warren does not require the trial court to give an eyewitness identification instruction if the defendant has not requested that instruction. The defendant in Warren had specifically requested the instruction. Trotter did not request an instruction on eyewitness reliability. Under these circumstances, Trotter s reliance on Warren to circumvent the clearly erroneous standard of review is without merit.
To further support his argument, Trotter then analogizes the facts in Warren to the facts in his case. In Warren, the eyewitness’ initial description did not completely match tire defendant’s characteristics, and the description was not consistent from hearing to hearing. In addition, tire eyewitness did not identify the defendant until 4½ months after the robbery when he was told that the police had arrested the man that robbed him and drat the man was in the courtroom. The only man in the courtroom was the defendant.
True to Trotter’s analogy, the facts in this case are similar to those in Warren. In this case, the day after his parents were murdered, Damante could not identify a picture of Trotter as the man who pushed him or killed his parents. Rather, Damante misidentified the picture of Trotter as his father’s friend Rock, who was married to Trotter’s sister, Lajoh. Damante identified Trotter’s picture 3 months later when police showed him pictures of all five of the codefendants. Trotter asserts that, at that point, it was possible that Damante had observed Trotter’s picture on television as the suspect in the case.
Although Trotter’s argument focuses on the factual similarities between this case and Warren, comparing the delay in making the identifications and the inconsistency of the identifications, Trotter’s argument overlooks a key difference between this case and Warren. In Warren, the eyewitness was identifying a complete stranger. Here, Damante knew Trotter, because Trotter was a friend of Wallace’s. Trotter had been to Damante’s house previously to visit Wallace. Damante also knew that Trotter sometimes visited with Trotter’s sister Lajoh and her husband Rock. Thus, Trotter was not a stranger to Damante.
We have previously held that an eyewitness identification instruction is not necessary when the witness is familiar with the person being identified. See, e.g., State v. Calvin, 279 Kan. at 206-07 (concluding that the witness was sufficiently familiar with the defendant who had been to the witness’ house on at least 20 occasions to purchase drugs from the witness’ brother); State v. Mann, 274 Kan. at 678-79 (concluding the trial court’s failure to give the instruction was not clearly erroneous because the witness knew the defendant); State v. Saenz, 271 Kan. at 353-54 (finding no error in failing to give the instruction because the witness knew the defendant). ““ “Where the witness personally knows the individual being identified, the cautionary eyewitness identification instruction is not necessary and the accuracy of the identification can be sufficiently challenged through cross-examination.’ ” 279 Kan. at 206 (quoting Mann, 274 Kan. 670 Syl. ¶ 2).
Trotter’s defense counsel thoroughly challenged Damante’s identification at trial. In fact, the State did not request Damante to identify Trotter during its direct examination. Rather, on direct examination, Damante testified that he heard his father say, “Chris.” On cross-examination, defense counsel elicited the testimony identifying the person Damante knew as ““Chris” to be the person who pushed Damante back into his room. Then on redirect, when the State asked Damante whether he saw the person he knew as ““Chris” in the courtroom, Damante identified Trotter. Damante testified that Trotter was at his house the night his mom and dad were killed. On re-cross, defense counsel questioned Damante again about whether Trotter was the man who pushed him back into his room. Trotter’s counsel then attempted to distinguish the man who pushed Damante from the man who struggled with Wallace on the stairs, asking:
“[Defense Counsel:] Q. Just so we’re clear, you’re telling — in response to the prosecution’s questions, you’re telling the jurors that the person you saw push you back in the room, that’s the Chris you’re identifying?
“[Damante:] A. Yes.”
Damante’s identification of Trotter as the man who pushed him back into his room directly contradicts Eddington’s testimony that Eddington was the man who pushed Damante back into his room. During closing argument, Trotter’s counsel highlighted this contradiction, noting, “Both of these identifications cannot be correct. Those two witnesses directly contradict each other. . . . It’s veiy clear he’s not talking about Chris Trotter. He’s talking about Kevin Eddington.”
To establish reversible error, Trotter must demonstrate that there is a real possibility that the jury would have rendered a different verdict if the trial court had given the eyewitness identification instruction from PIK Crim. 3d 52.20. See Mann, 274 Kan. at 677. Trotter has failed to make that showing. His trial counsel actively pursued Damante’s in-court identification, knowing that it would be contradicted by Eddington’s testimony. Trotter’s counsel also thoroughly attacked Damante’s identification, highlighting Damante’s inability to identify Trotter the day after his parents were murdered. Here Damante was familiar with Trotter, and his identification was thoroughly challenged during the trial; there is no possibility that the jury would have returned a different verdict if the eyewitness identification instruction had been given. Therefore, the trial court did not err by not giving the unrequested eyewitness instruction.
II. Admission of evidence that Huff was pregnant
Trotter argues that the trial court should not have admitted evidence that Huff was pregnant when she was murdered. Although Trotter generally objected to any evidence of Huff s pregnancy, he failed to object when Damante testified that he heard his mother say, “I’m pregnant. I swear to God it’s in there.”
As a general rule, all relevant evidence is admissible unless it is otherwise precluded by statute, constitutional prohibition, or court decision. K.S.A. 60-407(f). Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are designed to establish.” State v. Marsh, 278 Kan. 520, 530, 102 P.3d 445 (2004).
Trotter argues that Huff s pregnancy was irrelevant because it did not establish a material fact. The State, on the other hand, argues that evidence of Huff s pregnancy corroborates Damante’s, Navarre’s, and Eddington’s testimonies. Damante testified that he heard his mom tell the men, “I’m pregnant.” Navarre testified that he heard Huff scream, “I’m pregnant, don’t hurt me, don’t hurt me.” Eddington testified that he noticed Huff was pregnant. Each of these witnesses had credibility issues.
Trotter impeached Damante’s credibility by emphasizing the contradiction between Damante’s misidentification of Trotter as the man that pushed him back into his room. Trotter impeached Navarre and Eddington by stressing their favorable plea agreements. We note that Huff s pregnancy was a common thread in each of their testimonies, corroborating some of the circumstances of the robbery and bolstering their credibility regarding what happened the night Huff and Wallace were murdered. There is a logical connection between Huff s pregnancy and the inference that Damante, Eddington, and Navarre were telling the truth. Under these circumstances, the evidence of Huff s pregnancy became relevant.
The evidentiary statute that applies to the admission of this evidence is K.S.A. 60-445, which gives the trial court discretion to exclude otherwise relevant evidence if its probative value is outweighed by the prejudicial effect. Because the trial court has the statutory discretion to exclude evidence, this court reviews the trial court’s decision to admit the evidence using an abuse of discretion standard. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. The burden of proof is on the party alleging that discretion has been abused. State v. Horn, 278 Kan. 24, 39, 91 P.3d 517 (2004).
To demonstrate prejudice, Trotter points to the responses of potential jurors during voir dire. Trotter specifically highlights several potential jurors who expressed concerns about being prejudiced by Huffs pregnancy. However, none of these individuals made the petit jury that decided Trotter’s case.
We note that all of the final jurors expressed a willingness to follow the court’s instructions and to disregard Huffs pregnancy when determining whether Trotter should be sentenced to death. Juror K.D. indicated that she would be able to put that out of her mind. Jurors W.H., W.D., M.A., V.S., C.R., C.H., L.M., W.T., B.H., C.K., R.T., C.S., and R.D. all indicated that they could follow the court’s instructions and ignore Huff s pregnancy when considering the death penalty. Juror V. S. specifically stated that she would not consider it if she were told not to. Juror C.K. was the only juror that indicated some reservation, stating, “I can say that with my brain, but we would have to wait and see what my heart would say.” The remaining two jurors, T.B. and J.M., did not specifically indicate an opinion regarding Huffs pregnancy. Neither the State nor Trotter questioned Juror T.B. or Juror J.M. on the subject of Huffs pregnancy. However, neither responded when Trotter’s counsel asked if the potential jurors had a problem with that evidence.
Prior to hearing the evidence, each juror had indicated a willingness to follow the court’s instructions in deciding this case. The court instructed the jury on the elements of the crimes. Huffs pregnancy was not included in the elements. After reviewing the record, it is clear that the jury was not prejudiced by Huff s pregnancy because it did not sentence Trotter to death. Trotter has failed to demonstrate to this court that he was prejudiced by the evidence of Huff s pregnancy. The trial court did not abuse its discretion by admitting evidence of Huff s pregnancy.
III. Peremptory strikes to eliminate 9 of the 10 African-Americans from the jury
Trotter claims that he did not receive a fair trial by a jury of his peers because the State used 9 of its 16 peremptory challenges to eliminate 9 of thelO African-American potential jurors from the petit jury. Trotter struck the remaining African-American, leaving only one African-American as an alternate juror. To support this argument, Trotter relies on Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
Reviewing the State’s use of peremptory challenges for a Batson violation requires a three-step process:
1. The defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges based on race. State v. Washington, 275 Kan. 644, 653-54, 68 P.3d 134 (2003).
2. If the showing has been made, the burden shifts to the State to articulate race-neutral reasons for striking the questioned jurors. Washington, 275 Kan. at 653-54.
3. The burden then shifts back to the defendant to establish purposeful discrimination, and the court must determine whether the defendant has met that burden. The ultimate burden of persuasion rests with the opponent of the strike. Washington, 275 Kan. at 653-54; State v. Campbell, 268 Kan. 529, 533, 997 P.2d 726 (2000) (citing Purkett v. Elem, 514 U.S. 765, 767-68, 131 L. Ed. 2d 834, 115 S. Ct. 1769 [1995]).
The trial court’s determination of whether the defendant has shown purposeful discrimination is reviewed using an abuse of discretion standard. Under that standard, the reviewing court gives great deference to the trial court’s actions because the findings turn on the trial court’s evaluation of the prosecutor’s credibility. Judicial discretion is abused when no reasonable person would adopt the trial court’s view. Washington, 275 Kan. at 653-54.
After the State completed its 12 peremptory challenges for the primary jury, Trotter objected, claiming that the State was purposely ehminating African-American jurors. The trial judge ordered the State to articulate its reasons for the strikes. The trial judge then concluded that the State’s reasons were race-neutral and denied Trotter’s Batson challenge.
One factor to consider in determining whether the State’s peremptory challenges are discriminatory is the presence of other members of the same minority on the jury and tire failure of the State to remove such members when given the opportunity. State v. Betts, 272 Kan. 369, 396-97, 33 P.3d 575 (2001). Another factor is the percentage of a particular race on a panel when compared with the percentage on the petit jury. State v. Campbell, 268 Kan. at 535. Here, the State struck all but one of the potential African-American jurors from the panel. Trotter struck tire remaining African-American, leaving only one African-American as an alternate on the final jury panel. Looking at the numbers alone suggests discrimination existed in this case.
However, the trial court must avoid placing a determinative emphasis on any one factor. Although the trial court can objectively compare numbers or other facts, it must subjectively evaluate the credibility of the prosecutor as he or she explains the reasons for each challenged strike. 268 Kan. at 534-35.
In State v. Alexander, 268 Kan. 610, 1 P.3d 875 (2000), the State used its peremptory challenges to strike all four of the African-Americans from the jury. Although the defendant, who was also an African-American, complained that all the potential African-American jurors were struck because of their race, this court upheld the trial court’s finding that the State’s strikes were race-neutral. 268 Kan. at 620-22. Thus, under proper circumstances, the elimination of all African-Americans from the final jury is not determinative of this issue. The ultimate question is whether the State has purposely discriminated when exercising its challenges. State v. Kleypas, 272 Kan. 894, 1000, 40 P.3d 139 (2001).
To support his argument that the number of African-Americans stricken from the jury in this case is enough to require a new trial, Trotter relies on Miller-El v. Cockrell, 537 U.S. 322, 154 L. Ed. 2d 931, 123 S. Ct. 1029 (2003). The question before the United States Supreme Court in Miller-El was whether a certificate of appealability (COA) should be issued for Miller-El’s federal habeas corpus petition. Miller-El was convicted of capital murder and sentenced to death in Texas. While his direct appeal was pending, the United States Súpreme Court decided Batson. Miller-El then claimed that he did not receive a fair trial because the prosecution eliminated 10 of the 11 possible African-Americans from the jury when using its peremptory strikes. After ultimately losing his direct appeal and his state habeas proceedings, Miller-El filed a federal habeas petition, seeking review of his Batson claims. His federal habeas petition was also denied, and the federal district court denied MillerEl’s application for a COA to appeal the denial. The Miller-El Court granted the COA because Miller-El presented a substantial showing that he was denied a constitutional right. 537 U.S. at 341.
Although the Miller-El Court did not determine whether the underlying Batson claim had merit, it noted that Miller-El provided evidence of disparate questioning for black and white potential jurors, shuffling by moving African-Americans to the back of the panel where they may escape voir dire altogether, and policies within the District Attorneys office to exclude African-Americans from juries. 537 U.S. at 331-35. The Miller-El court stated that the statistical evidence alone raised a debate on whether the strikes were based on race. It did not hold that statistics alone were legally conclusive on the matter. 537 U.S. at 342.
Miller-El’s case returned to the Fifth Circuit Court of Appeals for review of his Batson challenge. Miller-El v. Dretke, 361 F.3d 849 (5th Cir. 2004). After the Fifth Circuit denied Miller-El’s federal habeas petition, the United States Supreme Court granted certiorari, then reversed the Fifth Circuit and granted Miller-El’s habeas petition based on his Batson challenge. Miller-El v. Dretke, 545 U.S. 231, 162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005) (hereinafter Miller-El II).
The Miller-El II court did not rely solely on the number of African-Americans struck from the jury. Rather, the Court viewed tire evidence cumulatively to conclude that the state courts’ decisions were unreasonable and erroneous. 545 U.S. at 266. Thus, Kansas law requiring courts to objectively compare numbers or other facts and subjectively evaluate the prosecutor’s credibility in making the strikes complies with the United States Supreme Court’s approach in Miller-El II. No one factor is determinative. See Campbell, 268 Kan. at 535. Trotter’s argument that this court should look solely at tire number of stricken African-Americans from the jury panel is without merit.
To determine whether Trotter’s Batson challenge has merit, this court must review the State’s reasons for striking the potential African-American jurors, applying an abuse of discretion standard. See Washington, 275 Kan. at 653-54. The State gave the following reasons for its peremptory strikes of the challenged potential African-American jurors:
B.E.: She said she could not impose a death sentence.
R.H.: She said she could not impose a death sentence.
G.L.: Her brother was convicted of murder, and she believed that the criminal justice system has treated him unfairly.
D.C.: He said he could not impose a death sentence.
C. M.: He was struck for several reasons. First, he blamed police for the terrorist attacks on September 11, 2001. Second, C.M. did not believe the death penalty is right. Third, he stated that the death penalty should only be used in cases involving torture or children.
R.C.: He was a pastor, and people in the clergy tend to be compassionate and forgiving.
J.C.: He participated in a prison ministry and may have been unable to impose the death penalty because of his compassion. In addition, J.C. believed that minorities receive the death penalty more often than others.
C.P.: He appeared disrespectful to the court because he wore sunglasses throughout voir dire. C.P.’s son had been convicted of shooting a police officer. In addition, C.P. indicated that he would hold the State to a higher burden than beyond a reasonable doubt for imposition of the death penalty.
Trotter does not raise any specific arguments related to the State’s strikes of B.E., R.H., or G.L..
Venirepersons D.C. and C.M.
As to D.C. and C.M., Trotter argues that the State did not completely and accurately present the facts. If the defendant or the trial court do not correct errors in the prosecutor’s statements of fact supporting his or her reasons for exercising peremptory challenges, these facts are considered to be true for purposes of determining whether the prosecutor set forth a race-neutral reason for the strike. State v. Betts, 272 Kan. at 396.
We have reviewed Trotter’s argument that the prosecutor’s reasons for striking African-American jurors are not supported by the facts. We find that argument is without merit. Trotter highlights D.C.’s general statement that he could follow the law. However, D.C. explained that he was “mixed up” about the death penalty because of the contradiction between obeying the law and his belief that he should not judge another person. We note that, when the prosecutor asked D.C. if he believed the death penalty was a proper punishment, D.C. stated he did not know. These statements support the prosecutor’s belief that D.C. was equivocal about the death penalty, and the reason for striking D.C. is race-neutral.
As to C.M., the record supports the prosecutor’s claim that C.M. had undergone anger management counseling, blamed law enforcement for the terrorist attacks, and did not believe in the death penalty. Trotter points out that C.M. stated the counseling would not affect his ability to be fair and impartial. Trotter then argues that the State was required to probe more deeply into the effect of C.M.’s anger management counseling and his opinion regarding the police’s responsibility for the terrorist attacks. We disagree.
For the proposition that the State has to ask questions directly related to the reason for its peremptory strikes, Trotter relies on State v. Fischer, No. 87,740, Court of Appeals unpublished opinion filed July 16, 2004. Fischer does not support that proposition. In noting the defendant’s claim that the State had not asked any questions of the stricken minority jurors, the Fischer court observed that the failure to ask any questions “could give rise to an inference the strikes were racially motivated.” (Emphasis added.) State v. Fischer, slip op. at 2. However, the Fischer court concluded that the claim was without merit because the State had asked questions of the stricken minority jurors. Fischer implies that the State must ask some questions about a potential juror before striking him or her.
Contrary to Trotter’s argument, Kansas law does not require the State to present reasons that have a relationship to the case. State v. Bolton, 274 Kan. at 17. With C.M., it is possible that the State was concerned about C.M.’s anger management problems and his potential interactions with other jurors during deliberations. Nevertheless, the State’s reason for striking C.M. is race-neutral.
Venirepersons R.C. and T.C.
Next, Trotter argues that there is no support for the State’s concern that R.C. and J.C. would not have voted for the death penalty. Both R.C. and J.C. were involved in Christian ministries — R.C. as a pastor and J.C. as part of a prison ministry. Trotter seems to argue that the State had to malee a specific connection during its voir dire questioning between the potential jurors’ ministries and their service as jurors. As previously noted, this argument is without merit. In addition, striking a potential juror because he or she is a minister or married to a minister is a facially neutral reason. State v. Adams, 269 Kan. 681, 685-86, 8 P.3d 724 (2000) (upholding strike because potential juror was married to a minister); State v. Alexander, 268 Kan. at 620 (concluding that the trial court was in the best position to assess the minister’s demeanor when he said he felt he could not render a fair verdict because of his religious beliefs but later stated that he could perform his duty as a juror). The trial court did not abuse its discretion when it found the State’s reasons for striking R.C. and J.C. to be race-neutral.
Venireperson C.P.
Trotter argues that the State failed to ask follow-up questions linking C.P.’s sunglasses to its conclusion that C.P. was disrespectful to the court. Again, Trotter’s claim that the State had to specifically inquire about the link between its stated reason and the possible effect on the potential juror’s service is without merit. Such a proposition runs counter to Kansas law which does not require that the reason be related to the case, persuasive, or plausible. Washington, 275 Kan. at 654; Bolton, 274 Kan. at 17.
Body language and nonverbal messages can be considered facially neutral reasons for striking potential jurors. However, the trial court must be particularly sensitive when body language, alone, is advanced as a reason for striking a juror of a specific racial group. See, e.g, State v. Dean, 273 Kan. 929, 932, 46 P.3d 1130 (2002) (upholding a peremptory strike based on the prospective juror’s eye contact with the defendant); State v. Pink, 270 Kan. 728, 732, 20 P.3d 31 (2001) (upholding State’s strike of the only African-American juror because she smiled and nodded during questioning about whether police could he even though the defense counsel did not observe these actions by the potential juror); State v. Arteaga, 257 Kan. 874, 879, 896 P.2d 1035 (1995) (allowing State to strike a potential juror who immediately and affirmatively nodded his head when asked whether police could make mistakes); State v. Poole, 252 Kan. 108, 113-14, 843 P.2d 689 (1992) (affirming the State’s peremptory strike of a potential juror who would not speak up and appeared disinterested); State v. Hood, 245 Kan. 367, 376, 780 P.2d 160 (1989) (concluding that the State’s peremptory strike of a potential juror who sat with his arms crossed and seemed to have personal hostility toward the prosecutor based on his tone and facial expression was facially neutral).
The trial court was in a better position to judge C.P.’s behavior and the prosecutor’s credibility regarding C.P.’s attitude toward the court. See Alexander, 268 Kan. at 620-21 (concluding there was no abuse of discretion because this court “had no way of knowing” the potential juror’s demeanor or the State’s subjective opinion of him). Moreover, C.P.’s sunglasses were not the only reason the State struck him from the jury. The State also struck C.P. because his son had been involved in shooting a police officer. The State’s reasons for striking C.P. are race-neutral.
Trotter further argues that the trial court should have granted his Batson challenges because there were nonminority jurors with the same characteristics as the stricken African-Americans. We have stated that the State’s failure to strike a white juror with similar characteristics as a stricken minority juror is circumstantial evidence of purposeful discrimination. We then noted that, although this kind of circumstantial evidence may be sufficient to prove that the State’s race-neutral reason was pretextual, it is not conclusive evidence as a matter of law. The trial court is required to evaluate the prosecutor’s credibility in giving the explanation for striking a minority juror; this evaluation is entitled to great deference upon review. Bolton, 274 Kan. at 18-19. However, it is not the trial court’s duty sua sponte to compare the characteristics of the final jurors with the characteristics of the people who were stricken. The defendant has the burden to create the record of relevant facts and to prove his or her case to the trial court. State v. Campbell, 268 Kan. at 535.
Although Trotter discusses the characteristics of other jurors in his brief, he only brought Juror W.D. to the trial court’s attention when he raised the Batson challenges. Trotter’s attorney stated, “I’m not going to go through in detail, but I specifically note [Juror W.D.] from Panel B expressed the same land of reservations.” Trotter’s attorney failed to explain what he meant by “the same land of reservations.” We have reviewed Trotter’s claims, and they have no merit.
IV. Insufficiency of evidence to support Trotter’s convictions
For his final issue, Trotter claims that the evidence was insufficient to support his murder convictions.
“ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
Trotter argues that there was no evidence as to who actually shot Huff and Wallace. Because the State did not proceed on an aiding and abetting theory, Trotter argues that he cannot be convicted unless the evidence proved beyond a reasonable doubt that he was the actual shooter. Trotter then notes that the only witnesses that named him as the shooter were his codefendants who had entered into plea bargains which required them to testify that he was the shooter in return for significantly reduced sentences. Trotter asserts that, under this circumstance, the police encouraged his codefendants to identify Trotter as the shooter. This resulted in his codefendants meeting together while in custody and colluding against him. Trotter then argues that because their stories are inconsistent, the codefendants concocted the story so as to comply with the plea bargains and the police officers’ requirement that they implicate Trotter. Trotter’s argument essentially questions the codefendants’ credibility and bias.
However, this court does not reweigh the evidence or pass on the credibility of witnesses. State v. Bledsoe, 272 Kan. 1350, 1359, 39 P.3d 38 (2002); see also State v. Green, 260 Kan. 471, 477, 920 P.2d 414 (1996) (rejecting defendant’s claim that the evidence was insufficient because the witnesses’ testimony was inconsistent or incredible). After reviewing the record, we find that this claim is without merit.
Affirmed.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
McFarland, C.J.:
Jerome Cheeks was convicted of second-degree murder for the 1992 slaying of his wife. On direct appeal, this court affirmed the conviction. State v. Cheeks, 258 Kan. 581, 908 P.2d 175 (1995).
In 2000, defendant filed a pro se motion to correct an illegal sentence (K.S.A. 22-3504). The claimed illegality of the sentence is based wholly upon the district court’s failure to comply with the requirements of K.S.A. 21-4724. The district court denied the motion on the grounds defendant was not entitled to relief under the statute, and defendant appeals therefrom.
Highly summarized, the statute provides for sentences to be recomputed for pre-July 1,1993, convictions which would, under the Kansas Sentencing Guidelines Act (KSGA), be classified “in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-1 or 6-G of the nondrug grid or in grid blocks 3-H or 3-1 of the drug grid.” K.S.A. 21-4724(b)(1).
In support of his position, defendant relies on K.S.A. 21-4724(f), which provides:
“(f) In the case of any person to whom the provisions of this section shall apply, who committed a crime prior to July 1,1993, but was sentenced after July 1,1993, the sentencing court shall impose a sentence as provided pursuant to law as the law existed prior to July 1,1993, and shall compute the appropriate sentence had the person been sentenced pursuant to tire Kansas sentencing guidelines.” (Emphasis added.)
Defendant admits he is not eligible for sentence conversion under KSGA but contends the statute requires a computation of his sentence under KSGA and a hearing thereon at which he would be physically present.
Defendant was convicted of second-degree murder. Presently, the crime of second-degree murder may be classified as a severity level 1, person felony or a severity level 2, person felony (K.S.A. 2004 Supp. 21-3402). At no time since the enactment of K.S.A. 21-4724 has the statute been applicable to defendant’s second-degree murder conviction. Accordingly, he has no rights under the statute — no computation, no hearing, and no personal appearance at a hearing.
We conclude that the sentence herein is not illegal.
The judgment is affirmed.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Beier, J.:
The defendants, Crystal Swinney and James Leon Rich, II, appeal their convictions of manufacturing methamphetamine, possession of methamphetamine, possession of pseudoephedrine with the intent to manufacture methamphetamine, and possession of drug paraphernalia with the intent to manufacture methamphetamine. Their appeals were consolidated before the Court of Appeals, which affirmed the defendants’ convictions but vacated their sentences for manufacturing methamphetamine and remanded for resentencing on those counts under State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). State v. Swinney, Nos. 91,042, 91,120, unpublished opinion filed December 23, 2004.
On petition for review to this court, the defendants raise the following challenges to their convictions: (1) Their motions to suppress should have been granted; (2) there was insufficient evidence to support their convictions; and (3) the prosecutor committed reversible misconduct during questioning of witnesses and closing argument.
The defendants also have filed “Motions to Stay Proceedings and Remand for Resentencing.” This opinion makes these motions moot and they are, therefore, denied.
Relevant Facts and Procedural History
The defendants’ legal difficulties began when two boys discovered what they believed to be a methamphetamine laboratory while hunting. The boys found a barrel containing two bottles beside a shed. One of the bottles was smoking, and the other was coated with a white residue. The boys also smelled ether.
One of the boys informed his uncle, Steve Holmes, of the discovery. Holmes happened to be a detective with the Pratt County Police Department, and he was under the impression that the land on which the barrel and shed stood belonged to the other boy’s family. The same day, Holmes called the Pratt County Sheriff s Department and met Detective Jeff Ward and Deputy Mark Holloway at the site of the barrel and the shed.
The officers observed a dilapidated shed near an old chicken house and abandoned cars. The shed had a hole in its roof; its side door was open; and its garage-type door was off its track. The officers found the barrel and observed the bottles, which they determined were gassing generators used in manufacturing methamphetamine.
At that point, the officers decided to conduct random surveillance of the site and sought permission from the family they believed to be the owner of the land. For several days, the officers made intermittent visits to the site but failed to apprehend the manufacturers. They were able to determine, however, that the lab was an ongoing operation because some of the drug paraphernalia at the site was moved around from one visit to the next.
Finally, Holloway visited the site again and reported to Ward that he had entered the shed and found two pitchers of “meth oil.” The officers then elected to begin constant surveillance, which paid off approximately 15 minutes later, when a red Pontiac approached the shed. The officers then saw two persons, later identified as defendant Rich and Ricky Rodriguez, exit the car, enter and leave the shed, and return to the car.
At this point, the officers emerged from their hiding places and ordered everyone out of the car. Rich yelled, “Drive, drive, go, go, go,” but the car did not move. Ward apprehended the driver, defendant Swinney; and Holloway apprehended the passengers, Rich and Rodriguez. Swinney and Rich, who were in the front seat, each had a pitcher of meth oil. Rodriguez, in the back seat, had a container of Morton salt at his feet, as well as several bottles, tubing, and a backpack “that contained a yellow container full of a clear liquid that tested as acid.”
Rich informed the officers that he owned the land on which the shed stood. When the officers learned that the ownership of the property differed from their original understanding, they obtained a search warrant.
Swinney and Rich filed motions to suppress. They argued that the land was not owned by the family from whom the officers sought permission for random surveillance. The State countered that the officers’ behavior was permitted by the open fields doctrine. The district court denied the defendants’ motions.
Swinney, Rich, and Rodriguez were tried together. Rich testified. He claimed that he, Swinney, and Rodriguez had gone to the shed on the day of their arrests because he had received a phone call warning him there was unspecified “stuff’ at the site that could get him in trouble. The defendants took the position at trial that they were unaware of the illegal character of the lab and its various items of equipment and materials.
During cross-examination of Rich and during the questioning of a rebuttal witness, the prosecutor attempted to inject evidence of other drug activity by Rodriguez. Rodriguez had admitted to methamphetamine use in probation revocation proceedings after an earlier conviction. The record reveals that the district judge sustained at least three defense objections to introduction of this evidence, as well as admonishing the prosecutor about forcing a mistrial no fewer than three times.
Rich’s father, James Rich (“Rich Senior”), also testified. He said that the land on which the shed stood belonged to his family and that he had stored antiques in the shed in the past. Rich Senior also said he had experienced a problem with trespassers on the land and had attempted unsuccessfully to involve police in solving the problem. Because of this past police inaction, he said, he had not recently reported trespassers at the site. He further testified that he had visited the site “maybe twice” the previous year.
During closing argument, the prosecutor stated that no evidence had been brought forward to controvert the allegation that Swinney had knowledge of methamphetamine.
On appeal to the Court of Appeals, Swinney and Rich argued that their motions to suppress should have been granted because the officers lacked a search warrant; the defendants had a reasonable expectation of privacy in the area searched; and any evidence obtained after the initial illegal entry constituted fruit of the poisonous tree. A majority of the Court of Appeals panel determined that the search of the property was legal pursuant to the open fields doctrine. Thus, the fruit of the poisonous tree rule was inapplicable.
Judge Richard Greene dissented from the portion of the majority’s decision approving the officers’ entry into and search of the shed, considering it an “unwarranted extension of the ripen fields’ exception to Fourth Amendment protections.” Swinney, slip op. at D-1. He wrote:
“Neither the State nor tire majority has cited authority to suggest that an enclosed structure, albeit in poor or run-down condition, may be entered and searched without Fourth Amendment protection, merely because it is located within an ‘open field,’ especially where the person claiming protection asserts a reasonable expectation of privacy in the location. In fact, the entire stated rationale for the exception is notably inapplicable to structures standing on ‘open fields.’ ” Slip op. at D-3 (Greene, J., dissenting).
Motion to Suppress
On appeal of a district court decision on a motion to suppress evidence, the appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusions drawn from the facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the propriety of the suppression of evidence is a legal question requiring independent appellate review. State v. Vandevort, 276 Kan. 164, 169, 72 P.3d 925 (2003).
Before this court, Swinney and Rich agree with Judge Greene’s dissent but cite no case law to support the argument that their motions to suppress should have been granted because the police officers’ warrantless entry and search of the shed was an impermissible extension of the open fields doctrine.
The open fields doctrine, which provides an exception to the search warrant requirement of the Fourth Amendment was first recognized by United States Supreme Court in Hester v. United States, 265 U.S. 57, 59, 68 L. Ed. 898, 44 S. Ct. 445-(1924), which held that “the special protection accorded by the Fourth Amendment to the people in their persons, houses, papers, and effects,’ is not extended to the open fields.”
Sixty years later, the Court clarified the open fields doctrine in Oliver v. United States, 466 U.S. 170, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984). The Oliver decision arose out of two cases involving similar facts.
In the first case, Kentucky police officers found a marijuana field approximately 1 mile from defendant Ray E. Oliver’s home, and the federal district court determined Oliver had a reasonable expectation of privacy in the area of the farm that had been searched. According to the district court, Oliver “ ‘had done all that could be expected of him to assert his privacy in the area of farm that was searched.’ ” 466 U.S. at 173. The Sixth Circuit Court of Appeals reversed, and the Supreme Court granted certiorari.
In the second case, Maine police officers discovered two marijuana patches surrounded by chicken wire in the woods behind defendant Richard Thornton’s home. The state trial court granted Thornton’s motion to suppress, noting that Thornton had posted “No Trespassing” signs and that “the secluded location of the marijuana patches evinced a reasonable expectation of privacy.” 466 U.S. at 175. The Maine Supreme Judicial Court affirmed, and the Supreme Court granted certiorari.
The justices voted 6-3 against suppression, stating the Court’s 1924 Hester decision “was founded upon the explicit language of the Fourth Amendment. That Amendment indicates with some precision the places and things encompassed by its protections.” Oliver, 466 U.S. at 176. The Court further stated its interpretation was consistent with the right to privacy concept extant in Fourth Amendment jurisprudence.
“Since Katz v. United States, 389 U.S. 347[, 19 L. Ed. 2d 576, 88 S. Ct. 507] (1967), the touchstone of Fourth Amendment analysis has been the question whether a person has a constitutionally protected reasonable expectation of privacy.’ [Citation omitted.] The Amendment does not protect the merely subjective expectation of privacy, but only those ‘expectation[s] that society is prepared to recognize as “reasonable.” ’ [Citations omitted.]” Oliver, 466 U.S. at 177.
The Court contrasted those areas in which a person has an expectation of privacy with open fields, which “do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.” 466 U.S. at 179. The Court held that open fields were, as a practical matter, accessible to the public and the police in ways a home, an office, or commercial structure would not be; nor do fences or “no trespassing” signs effectively bar the public from viewing open fields. 466 U.S. at 179. Moreover, “the public and the police lawfully may survey the lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that ‘society recognizes as reasonable.’ ” 466 U.S. at 179. In short, “from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, ... an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.” 466 U.S. at 181.
The Oliver decision also cautioned that a mere case-by-case analysis would fail to arrive at workable accommodations between the needs of law enforcement and Fourth Amendment interests. 466 U.S. at 181-82. And a purely subjective inquiry into whether a particular individual attempted to conceal what he or she asserted as a “private” activity would be insufficient. 466 U.S. at 182. Rather, the Court said the correct question would be “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” 466 U.S. at 182-83. The Court reaffirmed the Hester rule and clarified that it “may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. [Citation omitted.]” Oliver, 466 U.S. at 178; see also United States v. Dunn, 480 U.S. 294, 304-05, 94 L. Ed. 2d 326, 107 S. Ct. 1134 (1987) (police officers standing in open field permitted to look into bam, even if defendant had reasonable expectation of privacy in it; use of flashlight to illuminate inside of barn did not transform officers’ observations into unreasonable search).
This court has not previously addressed the open fields doctrine under either federal or state constitutional provisions, but we have concluded that the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights “are identical for all practical purposes. If conduct is prohibited by one, it is prohibited by the other.” State v. Kimberlin, 267 Kan. 659, 664, 984 P.2d 141 (1999). The converse also is necessarily trae. If law enforcement conduct is permitted by one, it is permitted by the other. This court has long recognized and applied the concept of curtilage in various factual contexts. See, e.g., Kim berlin, 267 Kan. at 665-66 (evaluation of trash seizure; “basic attributes” of curtilage include seclusion, use for “intimate activities associated with the sanctity of the home”); State v. Berry, 223 Kan. 102, 106, 573 P.2d 584 (1977) (seizure of drugs from motel shrubbery; shrubbery part of general landscaping, not part of curtilage of motel room); State v. McClelland, 215 Kan. 81, 82-85, 523 P.2d 357 (1974) (search of defendant’s person approved; defendant within “premises” including curtilage to be searched when standing in parking area immediately in front of house); State v. White, 83 Kan. 416, 418, 111 Pac. 437 (1910) (analyzing bam where liquor consumed; referencing common-law rule “that buildings within curtilage are for some purposes considered parts of a dwelling house”); State v. Bugg, 66 Kan. 668, 671, 72 Pac. 236 (1903) (for purpose of burglary statute, building within curtilage if situated within “such close proximity to the dwelling as to be conveniently accessible, and is actually used in connection with the dwelling for domestic purposes, although neither is enclosed”); Zimmerman v. Franke, 34 Kan. 650, 654-55, 9 Pac. 747 (1886) (garnishment; including residence within curtilage in definition of “family”).
Our Court of Appeals has recognized and applied the United States Supreme Court’s open fields holdings of Dunn, Oliver, and Hester, as well as the concept of curtilage. Its decision in State v. Tinsley, 16 Kan. App. 2d 287, 823 P.2d 205 (1991), is particularly noteworthy.
In Tinsley, a police officer discovered marijuana growing behind the defendant’s bam and later obtained a search warrant. Defendant Everett Tinsley’s motion to suppress was denied based on the open fields doctrine, but, on appeal, he asserted that, even if the open fields doctrine applied in Kansas, die marijuana was growing within the curtilage of his home.
The Tinsley panel employed four factors enumerated in Dunn, 480 U.S. 301, to assist in determining whether a given area qualified as curtilage: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. Tinsley, 16 Kan. App. 2d at 290-91 (citing Dunn, 480 U.S. at 300-01). These factors should not be applied mechanically, but they are “useful analytical tools ... to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at 301.
In Dunn, the United States Supreme Court concluded that a bam located 60 yards from a home and not within an area enclosed by a fence surrounding the house, lay outside the curtilage of the house. 480 U.S. at 300-05. Likewise, the Tinsley panel upheld the district court’s rejection of the defendant’s motion to suppress, ruling that the marijuana field at issue was not within the curtilage of Tinsley’s home. 16 Kan. App. 2d at 291.
Considering our previous cases and the United States Supreme Court’s Dunn factors in light of the record before us, we are able to conclude easily that the site of the meth lab in this case was not within the curtilage of any home. There was no evidence regarding the site’s proximity to a home, and Rich Senior testified he had previously used the site for storage but had ceased doing so. He had visited the site rarely in the recent past, and he had given up on seeking police intervention to deter trespassers. The site, including what could be seen from outside the shed, was an open field.
Had the officers only conducted surveillance, eventually arresting the defendants and seizing the items in their possession, our analysis would end here. As the United States Supreme Court said in Dunn: “Under Oliver and Hester, there is no constitutional difference between police observations conducted while standing in a public place and while standing in the open fields.” 480 U.S. at 304. But at least one of the officers involved in this case also entered and searched the shed at the site. We must therefore consider whether those warrantless actions violated the Fourth Amendment or, if so, whether the actions constituted harmless error.
Sister jurisdictions that have dealt with similar factual situations have consistently commented that the warrantless search of a struc ture or outbuilding located in an open field presents a close question. See, e.g., United States v. Pennington, 287 F.3d 739, 745-46 (8th Cir. 2002) (“very close issue”; warrantless search of underground bunker in open field with visible entryway, ladder, no lock or door; determined no error in denying motion to suppress but “[open fields doctrine] does not justify a warrantless search of a man-made enclosure found in an open field”); Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2001) (warrantless search of barn invalid under Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); doors usually locked, within fenced area, less than 60 feet from home); United States v. Ramapuram, 632 F.2d 1149, 1152-54, 1156 (4th Cir. 1980) (“far from easy question”; warrantless search of open tmnk of “junker” car in open field; search upheld after lengthy balancing under Katz); United States v. Longie, 370 F. Supp. 2d 941, 945-46 (D.N.D. 2005) (warrantless search of unused shed improper under Katz; police’s search warrant for house did not extend); People v. Pitman 211 Ill. 2d 502, 518-20, 813 N.E. 2d 93 (2004) (warrantless search of unused barn with one open side, doors unlocked and wide open, acceptable because abandoned; Illinois Supreme Court reversed under Katz after lengthy discussion; noted officers had opportunity to obtain warrant).
We need not answer this close question on the facts before us. Even if we assume that the officer overstepped by entering and searching the shed, such a ruling would not have made a difference in the outcome of this case. See Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (harmless standard for constitutional error). He and his fellow officers had already conducted surveillance of the site for several days. They had already seen the gassing generators in the barrel outside of the shed and had observed rearrangement of items, demonstrating an ongoing operation between visits. These observations provided sufficient probable cause to arrest Swinney, Rich, and Rodriguez, which in turn supported seizure of the items in their possession. The evidence regarding the officers’ observations, the items found in the defendants’ possession or within easy reach at the time of their arrest, and Rich’s vague and implausible testimony about the warn ing telephone call amply supported the jury’s verdicts. A ruling that the entry and search of the shed were impermissible would have excluded none of this evidence; thus, we conclude beyond a reasonable doubt that any error resulting from entering and searching the shed would not have changed the jury’s verdicts.
Sufficiency of the Evidence
Swinney and Rich next argue that, if their motions to suppress had been granted, the remaining evidence would have been insufficient to support their convictions. They state the incorrect standard of review. The proper standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendants guilty beyond a reasonable doubt. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
As discussed above, we have already concluded that the evidence supported the convictions, even if the entry and search of the shed was improper. The open fields doctrine supported the highly incriminating surveillance conducted, and the surveillance led to the defendants’ arrests and the seizure of additional damning evidence. Regardless of the ruling on the motion to suppress evidence observed in the shed, the jury still would have known: (1) an on-going meth lab was located at the site; (2) the defendants drove directly to the site and parked; (3) two of the defendants, Rich and Rodriguez, exited the car, entered and exited the shed, and returned to the car; and (4) when the defendants were arrested, the officers found many items in their possession indicative of “cooking” methamphetamine. Finally, Rich admitted he and his codefendants went to the site because he was warned items there could get him in trouble.
We also note that the jury was correctly instructed on the elements of the crimes charged and on aiding and abetting under K.S.A. 21-3205. In light of our review of the evidence, we have no hesitation in concluding that a rational jury could have found the defendants guilty beyond a reasonable doubt on all of the charges for which they stand convicted.
Prosecutorial Misconduct
Both the defendants assert on appeal that the prosecutor improperly questioned defendant Rich and that the judge did not caution the jury to disregard those questions. They claim that this violated their rights to a fair trial. Defendant Swinney also claims that the prosecutor committed error in improperly calling attention to her failure to testify, and that the prosecutor improperly shifted the burden of proof to the defendants during closing argument. She further claims that the cumulative effect of the prosecutor s questions and statements in closing argument denied her a fair trial.
The State contends that the prosecutor s questioning did not rise to a level of misconduct and that, in any event, the questions did not prejudice the jury and were not motivated by ill will. In addition, in the State’s view, the evidence against the defendants was overwhelming. The State also argues the prosecutor’s statements during closing argument were proper comments on the evidence and did not shift the burden of proof.
A defendant need not object to alleged prosecutorial misconduct in order to preserve the issue for appeal; the same standard of review applies regardless of whether an objection was made. See State v. Dixon, 279 Kan. 563, 581, 112 P.3d 883 (2005) (citing State v. Davis, 275 Kan. 107, 122, 61 P.3d 701 [2003]).
This court’s decision in State v. Tosh, 278 Kan. 83, Syl. ¶¶ 1, 2, 91 P.3d 1204 (2004), sets forth the governing two-step analysis for allegations of prosecutorial misconduct. This standard applies regardless of whether the alleged misconduct occurs during witness examination or during closing argument. See Dixon, 279 Kan. at 590-92; State v. Overton, 279 Kan. 547, 558-60, 112 P.3d 244 (2005); Tosh, 278 Kan. at 87-89 (cross-exam), 89-93 (closing argument).
The first step asks whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. The second step asks whether the remarks constituted plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial. Dixon, 279 Kan. at 590-91; see Overton, 279 Kan. at 558-59. The second step requires three factors to be considered: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors, unless the harmless error tests of both K.S.A. 60-261 and Chapman, 386 U.S. 18, have been met. Dixon, 279 Kan. at 592 (quoting Tosh, 278 Kan. 83, Syl. ¶ 2).
We do not regard the prosecutor’s questions as misconduct. In a case where drug defendants take the position that they were ignorant of the illegal nature of a meth lab at which they are arrested or its accouterments found in their possession, as these defendants did, a prosecutor may, under certain circumstances, introduce evidence of the defendants’ prior involvement with drugs. See State v. Gibson, 30 Kan. App. 2d 937, 943-46, 52 P.2d 339 (2002). If the evidence comes in to prove intent under K.S.A. 60-455, a limiting instruction should be given.
Here, the district judge repeatedly intervened before a limiting instruction would have been required. He was suitably sensitive to painting a defendant with no prior drug activity with the same brush used on one with such activity. He apparently stepped in to prevent it. This is exactly the type of courtroom control we have encouraged in other prosecutorial misconduct discussions. See, e.g., State v. Sperry, 267 Kan. 287, 308-09, 978 P.2d 933 (1999) (district judge has independent duty to protect a defendant’s right to fair trial); State v. Wilson, 188 Kan. 67, 72-73, 360 P.2d 1092 (1961) (court has duty to stop counsel from referring to facts not in evidence or appealing to prejudice of jury).
The prosecutor’s misstep here, if any, was flirtation with contempt of court by fading to abide by the district judge’s rulings immediately; but we see no error vis-a-vis these defendants.
Swinney also alleges prosecutorial misconduct in closing argument, asserting that the prosecutor improperly shifted the burden of proof and improperly commented on her failure to testify.
Swinney contends that the prosecutor s remarks suggested to the jury that the defense had a responsibility to prove she knew nothing about methamphetamine production and that it failed to carry this burden because Swinney did not testify. This argument lacks merit. The jury was correctly instructed that the burden of proof rested on the State. Defense counsel, in closing argument, referred to the State’s burden of proof. Furthermore, the prosecutor’s argument focused on the date and place of the occurrence, which were never in dispute.
Swinney also argues that the prosecutor’s assertion that evidence was uncontroverted is not permissible if the only person who can rebut the evidence was the defendant.
This argument is equally unconvincing. When a jury has been properly instructed that the State bears the burden of proof, a prosecutor may argue inferences based on the balance or lack of evidence, provided the remarks do not indirectly command an adverse inference regarding the defendant’s failure to testify. State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234 (2001). We do not see that problem here.
Finally, Swinney also argues that the cumulative effect of the prosecutor’s alleged misconduct during witness examination and closing argument denied her a fair trial. Having found no error, we cannot apply the cumulative error doctrine.
The defendants’ convictions are affirmed, their sentences for manufacturing of methamphetamine are vacated, and the consolidated cases are remanded for resentencing consistent with State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004).
Affirmed in part, vacated in part, and remanded with directions.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Harvey, J.:
This was an action to recover for services performed and expenses incurred by plaintiffs under an oral contract with defendant to manage certain real property. Defendant has appealed from an order overruling its demurrer to plaintiffs’ second amended petition, contending the petition shows on its face that plaintiffs’ cause of action is barred by the statute of limitations (G. S'. 1935, 60-306, second). This is the sole question presented. We shall speak of the parties as they appeared in the trial court in this case.
The petition was filed July 22, 1940. The pertinent allegations of the second amended petition may be summarized as follows: Charles Abraham Haldeman, a resident of Anderson county, died September 4,1932, leaving a will giving all his property (except one tract of land) to defendant. The estate bequeathed and devised to defendant consisted of personal property of the value of about $100,000 and about 1,800 acres of land situated in Kansas and Illinois. On September 23, 1932, plaintiffs were appointed administrators c. t. a. of the estate. They duly qualified as such and entered upon their duties as administrators of the personal property of the estate. The personal property was more than ample to pay all claims against the estate and costs of administration. (We interpolate: Under the facts stated and the law of this state at that time, plaintiffs, as such administrators, had nothing to do with the real property devised to defendant. Title to and right of possession of the real property passed to defendant upon the probate of the will, notwithstanding an unsuccessful action to contest the will. [Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580.].) The petition alleged that soon after plaintiffs were appointed as administrators a named, duly authorized representative of defendant, “made and entered into an oral agreement with these plaintiffs, under the terms of which the said defendant required the plaintiffs, and the plaintiffs jointly agreed, to manage, look after and care for the real estate which had been devised to the defendant under said will, until it could be sold or during the pendency of the administration of said estate.” That pursuant to this contract plaintiffs proceeded to and did, from December, 1932, through the years 1933, 1934 and 1935, rent the real estate, keep it improved, pay the taxes and expend other necessary sums, all of the reasonable value and amount of $7,365.34, itemized statements of which were attached to the petition. Plaintiffs also proceeded with the administration of the estate up to and including the approval of their final report as administrators on November 18, 1935, and plaintiffs turned over said real estate to defendant in December, 1935. On the final report filed by plaintiffs as administrators they took credit for the expenditures and disbursements claimed for looking after the real estate, which claim was allowed by the probate court, from which allowance defendant appealed to the district court of Anderson county. That court made an order changing the venue to the district court of Coffey county, where the matter was duly tried and adjudicated on April 6, 1937. By this adjudication the court disallowed generally all matters relating to the management of the real estate which had been devised to defendant for the reason that plaintiffs, as administrators, had no jurisdiction over the real estate, the court stating in its ruling: “If there is to be an accounting with reference to the real estate, it is between the devisees and administrators, individually, and not in their official capacity.” A copy of the journal entry of the judgment of the court was attached as an exhibit to the petition. Thereafter the administrators, in compliance with the order of the dictrict court of Coffey county, filed an amended final report, which was approved by the probate court on July 12, 1937, showing a net amount of $97,653.58, which the probate' court ordered plaintiffs, as administrators, to pay to defendant. Plaintiffs, as administrators, paid defendant $87,867.13 on July 30, 1937, and $3,951.63 on May 17, 1938, “leaving a balance of $5,834.82 which the defendant claimed to be due it from the plaintiffs in their official capacity as administrators.”
Thereafter and on July 10, 1937, plaintiffs, as individuals, commenced an action against defendant in the district court of Anderson county to recover on their claim as individuals for expenses and services in managing defendant’s property. Defendant entered a special appearance and moved to quash the summons, which motion was sustained in November, 1937.
On June 3, 1938, defendant filed an action against plaintiffs, as administrators, in the district court of Douglas county to recover the balance of $5,834.82. To this petition the plaintiffs, as administrators and as individuals, filed a special appearance and motion to quash, which motion was sustained March 4, 1939. .
On April 13, 1939, defendant filed an action against plaintiffs, as administrators, in the district court of Anderson county to recover the balance of $5,834.82. To this petition the plaintiffs herein filed an answer and a cross petition in which they sought to recover from defendant for the care, operation and management of defendant’s real estate. Defendant, as plaintiff in that action, filed a motion to strike the cross petition as individuals for the reason that as such they were not parties and had no right to intervene. This motion was sustained June 29, 1939. About July 19, 1939, plaintiffs, as individuals, applied for leave to intervene in order that a complete and final determination could be made of the causes of action between the parties. This application was denied. On June 10, 1940, judgment was rendered in favor of defendant here against the plaintiffs, as administrators, for the amount of $7,004.
It is alleged that by reason of the facts and circumstances stated plaintiffs have expended $7,365.34 in the care and management of the real property; that defendant had recovered a judgment against plaintiffs, as administrators, in the sum of $7,004, making the total of $14,369.54, all of which plaintiffs have paid, or been required to pay, for the use and enrichment of defendant by reason of their having cared for and operated defendant’s real estate, pursuant to the oral agreement. That in connection with the management of defendant’s real estate plaintiffs received certain income therefrom, an itemized statement of which is attached, amounting to $6,905.04, leaving a balance due from defendant to plaintiffs of $7,464.30, for which the plaintiffs prayed judgment.'
In a second cause of action plaintiffs incorporated each paragraph of their first cause of action and alleged that at the time of the final settlement of the estate in the probate court, November 16, 1935, the court found and ordered that plaintiffs, as administrators, should be allowed as reasonable compensation for their services, in addition to all sums theretofore allowed to them for that purpose, the further sum of $16,200 and that plaintiffs, as administrators, should be allowed the further sum of $5,000 as reasonable attorneys’ fees necessarily incurred by them in the administration of the estate. A copy of the judgment of the court was attached as an exhibit. That on April 6,1937, by the judgment of the district court of Coffey county, these claims were disallowed, as shown by the journal entry of the court, a copy of which was attached to the petition. It was further alleged that acting as the agents and employees of defendant, pursuant to the oral agreement previously mentioned, and at its special instance and request, the plaintiffs expended much time and personal effort and rendered and performed a large amount of personal service in the care, operation and management of the real estate of defendant, for which they have not been paid. That a careful record of such expenditures had been kept, but had been destroyed by fire, and for that reason the nature, date and extent of the services cannot be stated with greater certainty, but plaintiffs allege that from the month of December, 1932, to the month of December, 1935, plaintiffs cared for, looked after, inspected, kept repaired, rented,' kept insurance in force, paid taxes, purchased seed, marketed crops, and did and performed all things necessary to be done in the care, operation and management' of the real estate of defendant, all of which work and services were of the reasonable value of $16,200; that in connection therewith plaintiffs found it necessary to engage the services of a lawyer, which services were of the reasonable value of $5,000. The prayer was for judgment for plaintiffs against defendant on the second cause of action for $21,200 with interest from December, 1935, and costs.
Since plaintiffs’ action is predicated on an oral contract, the parties agree the three-year statute of limitations (G. S. 1935, 60-306, second) is applicable. Defendant contends the statute began to run in December, 1935, wdrile plaintiffs argue it did not begin to run until before April or July, 1937. The contract pleaded was that plaintiffs were to manage and look after the real estate “until it could be sold or during the pendency of the administration of said estate.” Plaintiffs alleged they proceeded to administer the estate from the date of their appointment in 1932 “up to and including the approval of their final report as administrators on November 18, 1935, and thereafter until plaintiffs turned over said real estate to the defendant during the month of December, 1935.” So, the administration upon the estate was closed and plaintiffs’ management and care of defendant’s real property ceased in December, 1935. We think it clear plaintiffs’ cause of action arose at that time. They could! have sued then. See Bruner v. Martin, 76 Kan. 862, 93 Pac. 165; Emanuel Home v. Bergin, 127 Kan. 593, 274 Pac. 284; Cole v. Emerson, 133 Kan. 442, 1 P. 2d 249, and authorities cited therein. Plaintiffs point out that defendant appealed from the final account of the administrators, approved by the court November 18, 1935, and that this appeal was not finally adjudicated until in 1937. This appeal involved only questioned items in the final account of plaintiffs as administrators. The actual administration upon the estate had been closed, except the ultimate approval of the final account, and plaintiffs had turned over the real estate to defendant. At that time their relations to the real property and as managers and caretakers of the same for defendant terminated. They ceased to perform under their oral contract, and they became entitled to compensation for their services performed and expenses incurred under that contract. This action was not brought until more than four and one-half years later.
Plaintiffs contend the three-year statute of limitations was tolled by the allowance of their claim for the services and expenses here involved by the probate court, November 16, 1935, until the appeal from that order was reversed, April 6, 1937, and in support of this contention cite the annotation in 100 A. L. R. 253, where the annotator said:
“The allowance of a claim against a decedent’s estate is generally regarded as sufficient to keep the claim good, regardless of any delay on the part of the claimant to take any further action toward its enforcement.” (Citing cases.)
There is a similar statement in 34 C. J. S. 749, citing cases. We have examined the cases cited by these authorities. While they arose in different ways, they have to do with debts or financial obligations of some character which the decedent owed, or on which he was otherwise obligated at the time of his death, presented within the time authorized by statute and allowed by the court, but not paid or taken into account for payment for some years later and at a time when the debt would have been barred had it not been al lowed previously. In some cases the allowance of the claim was treated as a judgment which started anew the statute of limitations.
Here the decedent did not owe plaintiffs’ present claim against defendant at the time of his death, and never was obligated to pay it. Neither did the claim arise out of the administration of the estate. It arose out of a private contract between plaintiffs and defendant made after the death of the decedent. It pertained to a matter that neither the probate court nor plaintiffs, as administrators of the estate, had anything to do with. Plaintiffs, as administrators, should never have presented it to the probate court, and the probate court had no authority to do anything with it except to dismiss it.
The effect of presentation, allowance or rejection of claims against an estate is discussed generally in 21 Am. Jur. 600, § 386, citing Black v. Elliott, 63 Kan. 211, 65 Pac. 215; Thomas v. Williams, 80 Kan. 632, 103 Pac. 772, and other authorities. We deem this discussion as not being directly pertinent, but there is nothing in it to sustain plaintiffs’ contention on this point.
Plaintiffs make the general contention that the pendency of the various legal proceedings alleged in the second amended petition had the effect of tolling the statute of limitations to the extent that this action was not barred. In 34 Am. Jur. 194, in the discussion of legal proceedings which tolled the statute, it is said:
“It is well settled that the running of the statute of limitations against a cause of action is interrupted by the commencement of suit on that cause of action, and it is frequently held, sometimes by virtue of express statutory provision, that during the period of the restraint, incident to other legal proceedings which are of such a character that the law forbids one of the parties to exercise a legal remedy against another, the running of the statute of limitations is postponed, or, if it has commenced to run, is suspended. [Citing Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589, where a mortgagee was enjoined for many years from foreclosing his mortgage, it was held the statute of limitations was tolled pending the injunction; and other cases.] The broad, general principle that the time during which a person is prevented from exercising his legal remedy by some paramount authority is not to be counted against him in determining whether his right is barred by the limitation statute is applicable.”
In 37 C. J. 1039, 1040, the general rule is thus stated:
“Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right, even though courts are reluctant to acknowledge exceptions additional to those contained in the statute itself. . . . But in order that the pendency of other proceedings shall have the effect to toll the statutes of limitations upon a cause of action, the proceedings must be such as to prevent enforcement of the remedy by action.”
In Harrison v. Scott, 77 Kan. 637, 95 Pac. 1045, it was held:
“In order that the pendency of other proceedings will have the effect to toll the statute of limitations upon a cause of action the proceedings must be such as prevent the enforcement of the remedy by action.” (Syl. f 3.)
See, also, Smith v. Comm’rs of Bourbon Co., 43 Kan. 619, 23 Pac. 642; McDonald v. Symns, 64 Kan. 529, 67 Pac. 1111; Lindholm v. Heithecker, 113 Kan. 96, 213 Pac. 671, and Laupheimer v. Buck, 137 Kan. 935, 22 P. 2d 949.
The fact that plaintiffs presented their claim against defendant involved in this action, which had nothing to do with their administration of the estate, to the probate court, which had no jurisdiction of such a claim, and the fact that the probate court erroneously considered and allowed it, did not prevent plaintiffs from bringing a suit against defendant in the district court, as they have done in this case.
Plaintiffs contend that the action brought by them as individuals in the district court of Anderson county on July 10, 1937, upon the same cause of action here involved, tolled the running of the statute of limitations. But no valid service was had upon defendant in that action and it was dismissed. When service of summons is quashed no action has been commenced, within the meaning of G. S. 1935, 60-311. (Brock v. Francis, 89 Kan. 463, 131 Pac. 1179; O’Neil v. Eppler, 99 Kan. 493, 495, 162 Pac. 211; Vann v. Railway Co., 110 Kan. 799, 205 Pac. 607.) We think it has no bearing upon the statute of limitations.
Plaintiffs contend that the action brought by defendant against them as administrators in the district court of Douglas county, June 3,1938, to recover the balance due from them as administrators, had the effect of tolling the statute. But no valid service was had upon the plaintiffs as administrators or as individuals in that action and it was dismissed on March 4, 1939. We think it had no bearing on the question of the statute of limitations.
Plaintiffs contend the action brought by defendant against them as administrators in the district court of Anderson county April 13, 1939, to recover money plaintiffs, as administrators, were still holding and which they had been ordered by the probate court to deliver to defendant, in which they filed a cross petition as individuals upon the cause of action presented here, which cause of action was stricken by order of the court, and in which their motion to intervene as individuals so as to set up the cause of action presented here was denied, had the effect of tolling the statute of limitations. We think it had no such effect.
Respecting these separate proceedings, plaintiffs seek to invoke the benefit of our statute (G. S. 1935, 60-311), which reads:
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, . . . may commence a new action within one year after the reversal or failure.”
This could not apply to the appeal by defendant from the order of the probate court of November 18, 1935, for the reason, among others, that it was disposed of on April 6, 1937; there was still more than a year and a half of the original period of the statute of limitations — three years from December, 1935 — left in which they could have filed the present action. (See Jackson v. Oil & Gas Co., 115 Kan. 386, 222 Pac. 1114.) Neither could it apply to the action brought by plaintiffs against defendant in the district court of Anderson county July 10, 1937, for the reason, among others, that there was still left more than a year of the original three-year statute of limitations in which the present action might have been brought.
Plaintiffs argue that the action brought by defendant against them as administrators in the district court of Douglas county on June 3, 1938, to recover money which plaintiffs, as administrators, owed and which was not dismissed until March 4, 1939, bridged over the termination of the three-year original statute of limitations, which expired in December, 1938. We think that can have no such effect, not only for the reason that no valid service was had in that action, but for the further reason that it in no sense involved the controversy presented in this action.
Plaintiffs argue that the action filed by defendant in the district court of Anderson county against these plaintiffs, as administrators, on April 13, 1939, to recover the sum due from plaintiffs, as administrators, in which plaintiffs filed a cross petition as individuals, setting up the claim in this action, which cross petition was stricken in June, 1939, and in which, in July, plaintiffs’ motion to intervene and set up their personal cause of action was denied, tended to toll the statute of limitations, for the reason, among others, that the three-year statute of limitations had expired before their cross petition was filed or their claim to intervene was denied.
We take note of the fact that plaintiffs did not appeal from the judgment of the district court of Coffey county of April 6, 1937; nor from the order of the district court of Anderson county in November, 1937, quashing the service and dismissing the action brought by them against defendant; nor from the order of the district court of Anderson county of June 19, 1939, striking their cross petition in the action brought against them as administrators by defendant to recover the balance the probate court had ordered plaintiffs, as administrators, to pay defendant. All of these rulings became final.
In this court counsel for plaintiffs have filed an extended brief and cited many authorities. We have carefully considered all that is said in the brief and have examined the authorities cited. It would extend the opinion unduly to analyze these authorities. Many of them are from states where the statutes differ from our own. We find nothing in them that would require or justify a holding contrary to our views hereinbefore expressed.
The judgment of the court below is reversed with directions to sustain the demurrer.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment granting a temporary injunction against the state board of dental examiners to restrain them from enforcing an order revoking plaintiff’s license to practice his profession as a dentist.
The temporary injunction was granted on the verified petition of the plaintiff which in part alleged:
“That on or about the 10th day of August, 1942, said board, after a hearing held in Kansas City, Wyandotte county, Kansas, made an order revoking the license of plaintiff to practice dentistry in the state of Kansas, and that said board in issuing said order, acted unlawfully, arbitrarily and oppressively, and without authority of law, and that such order imposes a penalty of such severe nature on plaintiff as to take away from him his right to practice his profession and his means of livelihood, all of which was not contemplated by the laws of Kansas, and that this plaintiff has no adequate remedy at law. That unless restrained and enjoined defendants will inflict upon plaintiff irreparable injury and damage.”
Counsel for the defendant board bring this matter here for review, assigning error on the ruling of the trial court and contending that the court had no jurisdiction to grant the temporary injunction, that plaintiff’s petition stated no ground for equitable relief, and that plaintiff had an adequate remedy at law by an appeal from the order of the dental board which had canceled his license.
A majority of this court hold that the contentions of counsel for the dental board are correct. G. S. 1941 Supp. 65-1417 denounces as unlawful a number of acts and forbids a licensed dentist to practice them; and by G. S. 1935, 65-1407 the board is given authority to revoke his license. When such order of the board is made it “shall be in force until reversed or modified by the district court or an appellate court on appeal.” (G. S. 1941 Supp. 65-1418.)
Note the statutory language that the board’s order is to be in force until reversed or modified by the district court. The temporary injunction granted in this case sets at naught that provision of the statute. Counsel for plaintiff cite our recent case of Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P. 2d 597, where the validity of similar orders of the dental board canceling the licenses of two dentists was litigated to a conclusion in the district court and in 'this court by injunction proceedings of like tenor to the case at bar. But in the Capland case the right of the plaintiff to obtain a judicial review o'f the validity of the dental board’s order by injunction proceedings was not questioned. Here it is questioned, and there is no answer to it except to say that the plaintiff’s grievance, if established as alleged, can only be redressed as the statute provides — by appeal.
Counsel for plaintiff challenge counsel for the board to point out the statute which prescribes the mode of appeal. Counsel for the board cite G. S. 1935, 60-3301 which provides that a final order made by any tribunal, board or officer exercising judicial functions may be reversed, vacated or modified by the district court. To this citation, G. S. 1935, 60-3308 and 60-3321 should be added. The latter section is important, particularly in the case at bar where the dental board, exercising its judicial functions, upon payment of the lawful fees therefor, is required to furnish an authenticated transcript of the proceedings leading up to its order canceling plaintiff’s license, so that he can properly present his cause to the district court pursuant to the appeal accorded him by the statute (G. S. 1941 Supp. 65-1418).
It may be contended that the dental board does not have authority to exercise judicial functions, that its functions are executive and administrative, and that to clothe it with judicial functions would be a commingling of the powers of government in conflict with the tripartite scheme of government provided by our constitution. (State v. Johnson, 61 Kan. 803, 60 Pac. 1068.) A majority of this court reject this view, and hold that since the right to practice dentistry is a statutory privilege and not a natural right, the legislature may provide for the granting and revoking of licenses according to its own good will and pleasure, and that no constitutional inhibition impairs the force of its statutory declaration that the dental board’s order revoking plaintiff’s license shall be in force until that order is reversed or modified by the judgment of the district court on appeal.
It follows that the temporary injunction of the district court was improvidently granted and should be set aside and that plaintiff’s suit for an injunction should be dismissed and the cause remanded with instructions to that effect. It is so ordered.
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The opinion of the court was delivered by
Hoch, J.:
This case arises under the oil-proration law. Oil in excess of the “allowables” having been produced from certain wells, the State Corporation Commission issued an order charging the overage to the lease from which it had been produced. On appeal by the lessee and operator the district court set aside the order and the commission appeals. Was the order valid?
The material facts can be briefly stated. In February, 1942, the commission instituted an investigation into alleged violations of its oil production orders by a number of oil operators. Among the leases from which, it appeared, oil in excess of the “allowables” had been produced was the “Steckel Lease” in the Silica-Arbuckle pool in Rice county. Henry Bennett, appellee here, was lessee and operator of the five producing wells on the lease. At a hearing before the commission on March 23,1942, the following stipulation was entered into:
STIPULATION
“In connection with the Steckel Lease in the Silica-Arbuckle Pool of Rice county, Kansas, owned and operated by Henry Bennett, it is stipulated and agreed by Harold Medill, general counsel for the Commission, on one hand, and Fred Ice as attorney for Henry Bennett, on the other hand, that the assessment of costs made by the commission in accordance with the stipulation, that Henry Bennett shall be assessed his proportion of the costs in the above-entitled matter, which shall be in the amount of $500, without prejudice as to the rights of the said Henry Bennett on the hearing concerning overage, which hearing is continued and liability for said overage denied, for the reason that the oil taken from said lease was stolen and was produced and taken without the knowledge of the said Henry Bennett, the amount taken being 26,386 barrels, which was unreported to the Commission by the' Falcon Refining Company, the purchaser of said oil. The said Henry Bennett having received no part of the returns from the sale of said oil.
/s/ Harold Medill,
General Attorney for the State Corporation Commission,
/s/ Fred Ice,
Attorney for Henry Bennett.”
On the same day the commission made the following findings:
“The Commission finds that by the stipulation entered into between counsel for the commission and Henry Bennett, the amount of costs that should be assessed against Henry Bennett by reason of said investigation conducted by the commission in reference to the Steckel Lease in the Silica-Arbuckle Pool of Rice county, Kansas, was agreed to as being the sum of $500, but that the question of the overage to be charged against said lease, amounting to 26,005 barrels, should be continued for the purpose of permitting said Henry Bennett to introduce testimony as to whether said oil should be charged against said lease as overage since it was produced and taken from said lease without the knowledge of said Henry Bennett and for which said Henry Bennett received no compensation.” (Italics supplied.)
. Appropriate order was issued and further hearings were held on May 21, 1942, at which all interested parties were present or represented by counsel, and evidence was received. It is unnecessary to review the evidence.
On June 17, 1942, the commission made its findings and issued the order here involved. We quote from the findings:
“That the overages of 26,005 barrels, as stipulated to herein as having been produced from said Steekel Lease in the Silica-Arbuckle Pool of Rice county, Kansas, in violation of the rules, regulations and orders of the Commission, should be, in order to protect the correlative rights of the producers in said pool, charged against said Steekel Lease and said lease required to make up said overages from current and future allowables. The fact that said oil was produced and sold from said lease without the knowledge or consent of Henry Bennett and the fact that he received no compensation therefor does not justify this Commission in canceling said overages. Under the law it is the duty of this Commission to regulate the production of crude oil from the wells and leases in the prorated pools of this state so that each and every operator in such pools shall receive his fair share of 'oil from the common reservoir measured by the standard set forth in the statute and the rules and regulations of the Commission duly promulgated by this Commission. . . .
“There was testimony introduced to the effect that the excess oil produced from the Steekel Lease was stolen from said lease by the pumper and by others with the pumper’s knowledge and that Henry Bennett, operator of said lease, was free from negligence in his management and supervision of said lease. Whether Henry Bennett did or did not exercise that degree of care and supervision of the production of oil from his lease that a prudent and reasonable operator would have exercised under the circumstances is beside the point. The Commission prefers to hold and base this opinion not on the question of negligence of supervision of the lease, but rather on the ground that the statutes under which production is regulated make it the duty of this Commission to charge against the wells and leases from which production is had the oil produced therefrom irrespective as to whether it was produced with the knowledge or consent of the operator or whether the operator was negligent or free from negligence in permitting the oil to be produced from the-lease. We hold that the Commission is without power to judicially pass upon the property rights of the operators or to take the production of one operator and transfer it to another. It is within the common knowledge of those engaged in the oil business that where a well or lease is permitted to overproduce its ratable share of oil from the common pool, such excess oil that is produced results in the migration or drainage of a like amount of oil from neighboring leases to the one that is overproduced. Hence, if we were to hold that the overproduction of the Steekel Lease should be canceled and not charged against that lease, we would be in substance holding that the loss suffered by Mr. Bennett through the malfeasance of his pumper and others should be rectified by him keeping the oil that' has been drained from his neighbors with an opportunity to produce same at a later date. The statute confers no such power on this Commission.
“For the reasons stated it naturally follows that the motion of Henry Bennett to cancel and set aside the overages, stipulated to as having been produced from the Steekel Lease, should be overruled and denied; that said lease should be charged with said overages produced therefrom in the amount of 26,005 barrels and the records of this Commission should be corrected to reflect such overages.”
For clarification it may be noted that while the figure “26,386 barrels” is used in the stipulation, the “overage” was computed at 26,005 barrels and that is the figure used by both parties.
Appeal to the district court having been taken the matter was there heard on May 5, 1943, upon the record made before the commission. In its opinion, filed May 7, 1943, the court narrated the history of the proceedings before the commission, stated that it seemed to be admitted by all parties that the oil was pumped from the Bennett well by a pumper employed by him; that the tanks on the premises were connected with a pipe line through which Bennett• delivered the oil to the purchasers; that the pumper in charge, pumping the oil, “permitted others to come to the well in trucks and haul oil away, unbeknownst to Henry Bennett, the owner”; that the oil so trucked away was sold to the Falcon Refining Company at Great Bend, Kan.; that the stipulation (supra) amounted to an express agreement that the amount of oil therein stated had been produced, and that Bennett was bound by the stipulation and the court would not be justified in sending the matter back to the commission to take testimony as to the number of barrels taken; that the court was satisfied that Bennett was not a party in any manner to the theft of the oil and had he known it was being stolen from his lease he would have promptly stopped it; that “the court also feels he w7as not negligent in the manner in which he was operating the lease in permitting the oil to be taken by the thieves and the pumper”; that “at one time Mr. Bennett heard a rumor that oil was being hauled off his lease and he employed a man and kept him at or near the lease for a week, with a view of discovering whether or not oil was being taken and no oil appears to have been taken during that time”; that the pumper was not authorized to sell oil except through the pipe line; that the pool where the lease was located was of such a nature that oil may be drained about 1,300 feet from a producing well, and that “there fore some of this oil that was stolen through the Bennett well must have come from other leaseholders.” On this premise the court reached its conclusions as follows:
“If the 26,005 barrels overage is enforced against the plaintiff Bennett, and his well shut down until the leases around him produce an amount sufficient to equalize production in the pool, it will necessarily follow that some of the surrounding wells would draw oil from the Bennett lease, and he would therefore be making up oil stolen by these parties from the offset well of other parties. That would be manifestly unfair to Mr. Bennett.. Bennett had nothing whatever to do with stealing the oil and received no benefit from the stolen oil, and if oil was taken from his lease by the offset wells of other parties from the Bennett well, it would only mean that the commission would be causing Mr. Bennett to stand additional loss than that which he already has sustained. The court doesn’t think that should be done. The commission manifestly has no jurisdiction to restore oil stolen through the Bennett well from the offset wells, by making an order, the effect of which would allow the offset wells to recover their stolen oil from the Bennett well. Only a court of competent jurisdiction would have a right to make Mr. Bennett furnish oil to the owners of the offset well equal to the amount which was stolen from them through the Bennett well.
“This court is of the opinion that the commission should not have charged the 26,005 barrels stolen from the lease as overage against the plaintiff’s lease, and that the order of the commission charging said overage should be set aside and the judgment of this court rendered accordingly.”
The court set aside the order charging the overage to the Steckel Lease, directed that such overages be canceled, and that “the plaintiffs herein be restored to their allowable rights as of the time of the entering of the said decision.” (Italics supp.)
We first note appellant’s contention that Opal Lanterman, who joined with Bennett in the petition for review, was not a proper party, not being “a person aggrieved” within the meaning of section 55-606, G. S. 1941 Supp., which provides for judicial review of commission orders. Opal Lanterman holds the royalty interest under the Bennett lease and having no right'to produce was not a party to the proceedings before the commission. In view of the decision herein reached on the principal issue we need not determine this question. However, we shall hereinafter refer only to Bennett as appellee.
It may promote clarity by first stating some matters not at issue. It must be accepted that 26,005 barrels of production were taken from the Steckel lease in excess of the proration allowables. This overage was produced by appellee’s pumper and employee. While appellee raises some question as to the intent and proper interpreta tion of the stipulation as to the number of barrels of overproduction, we think the district court properly interpreted the stipulation. In any event no cross-appeal was taken from the court’s finding and appellee is bound by it. Further, appellee does not attack the regularity of the proceedings before the commission nor the validity of the proration law, nor the power of the commission to make reasonable rules and regulations; nor does he deny that an existing rule provides for action to be taken in case of overages. Nor, as we understand his position, does he question the power or duty of the commission to shut in wells or restrict their production until excess production has been wiped out and production equalized among the operators within the pool. His contention is that since the overproduction was without his knowledge or consent, and since he received no return from the sale of the stolen oil, the commission’s order was inequitable and invalid. To this should also be added his contention that he was absolved from negligence in supervising operations under the lease. On that we do not find the record quite so convincing as appellee contends. The commission made no finding on the question of negligence, taking the position that negligence in supervision or lack of it could not be a controlling factor, under the law; that operators were responsible for the production under their leases and that if there was overproduction the overage could only be charged to the lease from which it was produced. The trial court said in its opinion that it “feels he was not negligent in the manner in which he was operating the lease in permitting the oil to be taken by the thieves and the pumper.” We think it unnecessary to review at length the evidence upon this point. Appellee testified that his pumper was not required to keep any record of production and made no daily, weekly, or other reports. He further testified that at one time he became suspicious, having heard that oil was being hauled off the lease, and employed a watcher for a week. He visited the lease twice a month, on the average. The evidence was that the excess oil was hauled away from the lease in trucks over a period of two years or more.
Broadly stated, section 55-603, 1941 Supp., provides that when the full production from any oil pool cannot be had without constituting waste, or without injury to the correlative rights of other producers from the pool, or without unreasonable discrimination against other pools in the state, no person having a right to produce from the pool shall currently produce therefrom more than the pro portion which the productivity (commonly called “potential”) of his well or wells “considered in connection with the acreage reasonably attributable to each thereof” bears to the total productivity of all the wells therein. We are not here concerned primarily with the question of waste or with discrimination between pools, though those questions are indirectly involved. We are directly concerned with proration as a means of securing to each producer his fair share of the oil produced from a common reservoir — or, as the statute has it, “the respective correlative rights of the producers therein.” Any production from the pool in excess of the producer’s fair share — as determined by the commission — is unlawful production.
It is not necessary to take note of the extended provisions for enforcement of the act. (See particularly G. S. 1941 Supp. 55-604, 55-605, 55-606.) Suffice it to say that the commission is directed to so regulate production of oil as to effectuate the purpose of the act, and is “given jurisdiction and authority over all matters involving the application and enforcement of this act, and shall have authority to make and enforce rules, regulations, and orders for the prevention of waste as herein defined and for carrying out and enforcing each and all of the provisions of this a.ct,” etc. (G. S. 1941 Supp. 55-604[a].)
Under the rules and regulations duly promulgated the commission issues monthly production orders fixing the allowable production for the succeeding month or other period for the various wells and leases subject to the law. It is not denied that the monthly production orders of the commission fixed the amount of oil for each production period that could lawfully be produced from the Steckel lease, during the two years or more in which appellee’s pumper was producing this twenty-six thousand barrels of excess oil and receiving a part of the returns from those with whom he was conniving in its sale.
The commission’s rule 113 deals with the matter of overages and provides in part:
“Wells or leases which have produced in excess of their allowable for any allowable period shall discontinue production until such overproduction has been equalized by deductions from future allowables established either for the wells involved or the leases upon which they are located. Whenever the commission shall find that the overages charged against any well cannot be fully absorbed by it, such overages shall be charged against the lease upon which such Well is located and shall be absorbed bp deductions from the future allowables established for all of the wells located thereon, irrespective of whether any or all of such other wells are in existence at the time of the accrual of such overage.” (Italics supplied.)
The method provided in the rule has long been an established procedure for equalizing production between operators in a common pool. The Steckel lease is in the midst of many producing wells. There can be no contention that drainage did not occur from the other leases. Certainly a production of twenty-six thousand barrels of excess oil from the Steckel lease was grossly inequitable to the other producers. But appellee says he should not be charged with the overage because he was not negligent, had no knowledge of the overproduction, and received no part of the returns. However free from culpability he may have been and however unfortunate his own loss, the important fact' cannot be ignored that the excess oil was unlawfully produced and marketed from his lease by his employee placed in charge of production. Certainly the other operators cannot be held responsible for the operation of his lease. Their employees did not produce or steal or market this twenty-six thousand barrels.
The commission has a limited jurisdiction. It possesses no powers not given it by the statute. The law and the regulations clearly contemplate that the wells and leases shall be held responsible for producing only the amounts fixed by the production orders. Any other construction would not only require the exercise of broad judicial powers by the commission but would impose upon it an administrative task so difficult as to imperil the whole conservation and proration program. Certainly the commission had no power to allocate the overage on any theory of relative degrees of negligence of the operators of the Steckel and other leases in the pool. Could it have computed the drainage that had taken place from the various leases? Even if such an allocation would be lawful it would be highly speculative and impracticable. Appellee says in his brief:
“In producing a lease there is a reduction in the common source of supply, but to what extent that might be, no one has been able to determine. We frankly state that we have been unable to find any judicial opinion in which it has been found that there would be any possible basis upon which there could be a determination of damage by reason of drainage. In other words, no court has been able to establish a fixed measure of damage by reason of drainage.”
More than that, if the commission would depart from the law and relieve a lease from its overproduction simply because the responsible operator did not know' what was going'on or because he did not personally profit from the overproduction, it would assuredty open the gate to fraud and collusion.
We were advised by counsel, in oral argument, that the commission had not resorted in this case to the drastic step of shutting in entirely the Steckel lease, but wras proposing to permit the wells to be operated on heavily reduced allowables until the overage w'as wiped out. At the time of the hearing the Bennett wells had a monthly allowable of 6,047 barrels.
We find no case directly in point, on the facts. However, some underlying principles are well established. First, in the absence of arbitrary or capricious action or abuse of discretion by executive or administrative officers, courts do not interfere with the performance of their acts which are discretionary in character or involve the exercise of judgment. (43 Am. Jur. 72.) Furthermore, the acts of such administrative officers or boards, within the line of their official duties, are presumed to have, been regularly, properly, and legally taken. (State Corporation Commission of Kansas v. Wall, 113 F. 2d 877 and cases cited, p. 880.)
The right of the state in the exercise of its police pow'ers to protect the correlative rights of producers from a common pool is well established. (Champlin Rfg. Co. v. Commission, 286 U. S. 210, 76 L. Ed. 1062; 86 A. L. R. 403; State, ex rel., v. Bond, 172 Okla. 415, 45 P. 2d 712; H. F. Wilcox Oil & Gas Co. v. Bond, 173 Okla. 348, 48 P. 2d 820; Bay Petroleum Corporation v. Corporation Commission, 36 F. Supp. 66.) The right to equalize production, as against overages, was upheld in State Corporation Commission of Kansas v. Wall. Its duty to do so was clear.
It follows from what has been said that the lower court erred in setting aside the commission’s orders. This conclusion makes it unnecessary to consider other contentions of the appellant.
The judgment is reversed.
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The opinion of the court was delivered by
Hoch, J.:
In this action' an employer sought reimbursement from an insurance company for expenses incurred in defending- a suit for damages arising out of the death of one of its 'employees. The trial court sustained a demurrer to plaintiff's evidence and entered judgment for defendant. 'Plaintiff appeals. The principal question is whether actions for damages such as the one involved are covered by the policy.
Plaintiff, The El Dorado Refining Company, operated a gas and oil refinery at El Dorado, Kan. On October 16,1933, the defendant, The United States Fidelity and Guaranty Company of Baltimore, Md., issued a policy under which it assumed liability for damages and agreed to defend in actions against the plaintiff for certain injuries that might be suffered by employees. The term of the policy was from October 16, 1933, to October 16, 1934.
In the instant petition, filed in Sedgwick county ón June 13, 1938, plaintiff alleged that for several years prior to October 16, 1934, it had in its employ one Louis A. Draut, whose work consisted of cleaning, painting, and making repairs upon tank cars and other cars used in plaintiff’s business; that on December 27, 1934 (something more than two months after the term of the insurance policy expired) Draut was taken to the hospital, where he died on January 15, 1935; that after his death his widow, Ada M. Draut, and her daughters, as surviving heirs at law, brought an action against it for damages in the district court of Butler county alleging that Louis Draut “had been injured by reason of poisonous gases and substances in and about said refinery, and that said poisonous gases and other substances weakened and poisoned said Louis A. Draut, and that the injury was caused by said poisonous and injurious gases accumulating throughout the years from 1928 up to and including December 27, 1934, and that by reason of the accumulation of said poisonous and injurious substances in said Louis A. Draut’s body he became ill and died by reason thereof on January 15,1935.”
Plaintiff further averred that the Draut heirs alleged in their action for damages that Louis Draut’s “principal injury was caused during the year 1933 to 1934 . . . and prior to October 16, 1934”; that although “attempt was madé in said petition above referred to to state a cause of action in common law negligence against this plaintiff that said cause of action thereon attempted to be stated was based upon facts and proof that said Louis A. Draut’s death was caused by accidental means and therefore an injury within the terms of said policy of insurance between the defendant company and this plaintiff”; that upon being served with summons in the action for damages it notified the insurance company, appellee here, of the action and made a demand that it defend in the litigation; that the insurance company refused to do so; that it was compelled at its own expense to employ counsel, to prepare and file pleadings, etc., and that on September 23, 1937 it obtained a dismissal of the action. Judgment was asked for $750 for attorneys’ fees and for $111.33 for other expenses incurred in preparation for trial — total, $861.35.
In its answer the insurance company admitted that the action for damages had been brought against the plaintiff and that it had refused, upon demand, to defend the litigation or to bear any of the expense of doing so. It further alleged that its policy covered accidental injuries only and not “other so-called injuries or occupational diseases”; that the action for damages brought by the Draút heirs stated no cause of action for accidental injury, and that in such action the instant plaintiff — then defendant — specifically contended that the petition alleged occupational disease only. Other averments of appellee’s answer need not be noted.
After a lapse of about three years and five months — a delay unexplained by the record before us — the action came on for trial on November 18, 1941. Plaintiff introduced in evidence the insurance policy, the pleadings and journal entry of dismissal in the prior action for damages by the Draut heirs. Plaintiff also submitted testimony as to the notice given in the Draut action to the instant defendant and as to the expenses incurred, and as to the fair and reasonable value of attorneys’ fees in that action. To this evidence defendant demurred upon the ground that it did not constitute a cause of action and moved for judgment on the ground that the action for damages brought by the Draut heirs was not an action covered by the provisions of the policy. From an order sustaining the demurrer and from judgment for defendant thereupon entered the plaintiff appeals.
It is clear that appellee’s policy was issued to cover the employer’s liability under the workmen’s compensation law. It was designated “Standard Workmen’s Compensation and Employers’ Liability Policy.” The insurer contracted:
“One (a). To pay promptly to any person entitled thereto, under the Workmen’s Compensation Law and in the manner therein provided, the entire amount of any sum due', and all installments thereof as they become due,
“(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this policy, each of which statutes is herein referred to as the Workmen’s Compensation Law, and
“(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen’s Compensation Law.” ...
“One (b). To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees. . . . ,•
“Three. To defend, in the name and on behalf of this employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries. . . .
“Four. To pay all costs taxed against this Employer in any legal proceedings defended by the Company, all interest accruing after entry of judgment and all expenses incurred by the Company for investigation, negotiation or defense.”
The action for damages instituted by the Draut heirs — presumably in 1935 — was not brought under the workmen’s compensation law. It was filed in the district court and not before the compensation commissioner. In the lengthy petition no reference was made to the workmen’s compensation law. The action was an ordinary action for damages based upon the alleged failure of the employer to furnish the employee with a reasonably safe place in which to work, and to provide reasonable and proper devices for preventing injury from poisonous and dangerous substances encountered in the course of his work. It was alleged that the employee’s death on January 15, 1935, resulted from organic disorders resulting from inhalation and absorption of poisonous substances during the years he had been working for the company. In its answer the employing company denied generally the allegations of the petition, denied specifically that the illness and death of the employee was caused by the conditions under which he worked, and alleged that whatever dangers may have existed in connection with the work had been assumed by the employee. As heretofore noted, the employee became ill about two and a half months after the term of the policy expired and his death occurred approximately two weeks thereafter.
Appellant first contends that the policy is broader than the workmen’s compensation law, and that therefore it was immaterial that the action by the Draut heirs was not brought under that law. We need not determine whether the policy covered any injuries to employees not compensable under the workmen’s compensation law. Whether it did or not it is clear — and admitted by appellant — that in any event it only covered accidental injuries. In cases arising under the workmen’s compensation law we have had frequent occasion to consider the meaning of the basic words “personal injury by accident” (G. S. 1935, 44-501). An occupational disease such as that involved here is not an accidental injury within the meaning of the statute. (Echord v. Rush, 124 Kan. 521, 523-525, 261 Pac. 820 and cases there cited; Wright v. Keith, 136 Kan. 393, 15 P. 2d, 429.)
The reasoning of the cases cited is equally applicable to the Draut action which was not brought under the statute. In Gilliland v. Cement Co., 104 Kan. 771, 773, 180 Pac. 793, it was said: “An accident is simply an undesigned, sudden and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” While it may be contended that such a definition is subject, in certain cases, to too literal an application, wé have no trouble about its application to the instant case. The facts alleged in the Draut action clearly place the employee’s injury outside the definition of “accident.” (See “Accident,” “Accidental,” 1 Words and Phrases, Perm, ed., p. 250 et seq.)
Appellant next contends that under the policy the insurer was bound to defend on behalf of the employer in any action for damages for injuries to employees, although such suits are wholly “groundless or false,” and even though the petition fails to state a cause of action. This contention requires little comment. There might be some force in the argument if the petition had attempted — though ineffectually- — to state a cause of action based on accidental injury. But obviously the insurer was not bound to defend the employer in actions brought wholly' outside any obligations assumed in the policy. In other words, the insurer would not be bound to defend in actions wherein he would- have no liability in case the plaintiff secured judgment against the employer. A similar contention was considered at length in the case of Brodek v. Indemnity Ins. Co., 292 Ill. App 363, 384-387, 11 N. E. 2d 228, which involved facts and circumstances closely similar to those here presented and it was there said that the policy was not “intended to bind the insurer to take charge of and defend a suit in which, under the terms of the policy, it had no interest.”
What has been said makes it unnecessary to consider appellee’s argument based upon the fact that in any event the policy had expired several months before the illness and death of the employee, or other contentions made in the briefs.
The demurrer was properly sustained. The judgment is affirmed.
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The opinion of the court was delivered by
Parker, J.;
This was an action to recover damages for wrongful death suffered in an automobile accident and for injuries to decedent’s car which was being driven by her at the time of such accident.
Certain facts, as to which the evidence disclosed no serious controversy, were as follows: On August 18, 1941, Mrs. Dolpha Sams, the deceased, who lived with her husband in Denver, Colo., and was the mother of three adult children, all of whom were married, was driving her LaSalle car, the front part of which was 6 feet and 2 inches wide and the rear 6 feet and 4 inches wide, from her home in Denver to Kansas City, Kan. She was accompanied by her daughter, Mrs. Bach, who was driving a Buick automobile. These people left Denver about six o’clock a. m., mountain time, and from there traveled — the daughter at all times driving ahead of the decedent — a distance of about 425 miles to the place of the collision, two and one-half miles northwest of Glaseo, Kan., on U. S. highway 24, where Mrs. Sams arrived at about six o’clock p. m., central time. On the same date one Boswell was driving a semitrailer oil transport outfit owned by Stanley Mastín of Beloit and covered by an insurance policy issued by the defendant, Commercial Standard Insurance Company. The transport, driven by Boswell, was en route from Hutchinson to Beloit by the way of Salina and was traveling in'a westerly direction on U. S. highway 24 at the time of the collision. The outfit consisted of a 1941 Chevolet tractor to which was attached a trailer or truck. The tractor had a wheel base of 157 inches and was 7 feet and 5 inches in width. The trailer or truck carried a Butler gasoline tank, was 18 feet long and 7 feet and 11 inches in width. The distance from the front wheels of the tractor to the back wheels of the trailer was approximately 27 feet and from the back wheels of the tractor to the back wheels of the trailer it was 13 to 14 feet. The length of the entire outfit from the front bumper of the tractor to the skirt of the rear of the trailer was between 30 and 32 feet. At the time of the accident the weight of the LaSalle car was approximately 3,830 pounds and the weight of the transport, which was loaded with about 2,700 gallons of gasoline', was approximately 15 tons. U. S. highway 24 on both the east and west side of the bridge where the collision occurred was a mat or black-top road and the bridge, although there is some variance in the testimony, can be stated to be from 17 feet and 10 inches to 17 feet and 11 inches in width north and south and from 27 feet to 27 feet and 10 inches in length east and west. On the east side, ’300 feet east of the bridge, in the direction from which the transport was approaching, there was a narrow-bridge sign on the north side of the road, and on the west side, 232 feet west of the bridge in the direction from which Mrs. Sams was approaching there was a narrow-bridge sign on the south side of the road. Approaching the bridge from the east the driver of the transport had climbed a long gradual hill, the top of which is about four-tenths of a mile from the bridge and from that point proceeded down a gradual slope to and upon the bridge with a clear view of the road to the west for a distance of more than one mile. Mrs. Sams in approaching the bridge from the west traveled a comparatively level strip of road, more than a mile in length, before reaching the bridge and had a clear view of the road to and on to the east of the bridge for a distance of four-tenths of a mile. There was nothing to prevent either driver from having a clear view of the highway or any vehicles thereort for ■the distance herein described, and each had an opportunity to observe the bridge, the narrow-bridge signs, the width of the traveled portion of the road and the condition thereof at the time both drivers approached and entered upon the bridge. The LaSalle car and the transport collided on the bridge and as a result of the collision both of the vehicles were severely damaged and Mrs. Sams was instantly killed. At the time of the collision the weather was clear and the sun was shining and the road was dry.
The evidence as to how the collision occurred was contradictory and cannot be reconciled. Briefly, since it is not necessary to relate it in detail, it can be stated, although there was testimony to the contrary, there was some evidence to show the following: The drivers of both vehicles immediately prior to reaching the bridge were on their proper side of the road and each attempted to cross the bridge while traveling at a speed of approximately 55 miles per hour. Immediately prior to reaching the bridge the driver of the transport swung over to the south of the center line of the bridge and at the time of the collision the south side of his truck was 6 feet and 6 inches from the south banister of the bridge. The left front wheel of the LaSalle automobile came into contact with the rear dual wheel of the tractor portion of the transport, thereby causing the wreck which resulted in the death of Mrs. Sams and severe injury to both vehicles. The point of impact, with reference to the length of the bridge, was 13 feet and 5 inches east of the west end thereof.
On this evidence, elaborated as to details by the testimony of divers witnesses, the jury answered special questions and returned a verdict for plaintiffs in the sum of $5,675, on which after the filing and overruling of certain post-trial motions to which reference will be made, jugment was rendered against defendant, Commercial Standard Insurance Company. The appeal here is from that judgment.
One of appellant’s specifications of error is the refusal of the trial court to submit special questions to the jury as requested by it. Appellant’s brief contains no discussion of that assignment of error. Under those circumstances, this court has held such specifications of error are waived (Tri-State Hotel Co., Inc., v. Southwestern Bell Telephone Co., 155 Kan. 358, 125 P. 2d 728). Notwithstanding, we have examined the record and find no error in the refusal of the trial court to submit the special questions in the identical form requested by appellant. Nine of the twelve questions as requested were submitted verbatim. Other questions submitted substantially covered the information sought to be elicited by the other three and in our judgment appellant was not prejudiced by such refusal.
Another of appellant’s specifications of error is the overruling of its motion to set aside special findings of the jury. Appellant strenuously contends that the answers returned by the jury to such questions were not only unsupported by the evidence but were in such form as to clearly indicate capricious and unfair conduct of the jury in so answering them. This objection is directed against eleven of the findings returned in answer to the fifteen special questions submitted and to here quote such special questions and discuss in detail each of such answers would require more time and space, in our opinion, than this objection merits. We have, however, carefully examined the record and our examination discloses all of the answers objected to because of the lack of any evidence are supported by some evidence, although contradicted, which the jury had a right to believe. As to the other questions objected to by appellant as evasive, untruthful and contradictory, we have concluded, even though it be conceded the jury might properly have returned answers which would have been more satisfactory in the light of the testimony, such answers when construed together were not so contradictory as to require them to be set aside and do not evidence such an unfair attitude as to require 'that action. Jurors who are not versed in the law cannot be held to the strict rule as to the use of language to which a more highly trained' person would be held and courts should not set aside answers to special questions on the basis of capricious and unfair conduct of the jury unless they are absolutely convinced such answers reflect that attitude. This is particularly true, on appeal, where the trial court, which has had an opportunity to observe the demeanor and conduct of the jury, has passed upon and approved the special findings. This court has held that if there is any inconsistency in answers to special questions it is the duty of the court to harmonize them where it is reason ably possible to do so (Montague v. Burgerhoff, 152 Kan. 124, 102 P. 2d 1031; House v. Wichita Gas Co., 137 Kan. 332, 20 P. 2d 479; Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P. 2d 449 and Jordan v. Austin Securities Co., 142 Kan. 631, 51 P. 2d 38). Also, that in considering answers of the jury to special questions submitted the court is not permitted to isolate one answer and ignore others but is required to consider all of them together, and if one-interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted. (Dick’s Transfer Co. v. Miller, 154 Kan. 574, 119 P. 2d 454.) The reason for construing special findings so as to harmonize them with the general verdict, if possible, is that every reasonable presumption must be indulged in favor of the general verdict. (Waldner v. Metropolitan Life Ins. Co., 149 Kan. 287, 289, 87 P. 2d 515.) Measured by these rules we are unable to conclude the special findings were so contradictory as to justify the setting aside of any of them. Nor can we conclude the trial court committed error in overruling the motion for judgment on the special findings notwithstanding the verdict, on the ground such findings were contrary to the general verdict, destroy the plaintiffs’ alleged cause of action and show upon their face the plaintiffs are not entitled to recover in this action. For the purpose of testing a ruling on a motion for judgment on the special findings non obstante veredicto, that motion admits there was evidence to support such special findings (Haney v. Canfield, 152 Kan. 597, 600, 106 P. 2d 662; Witt v. Roper, 149 Kan. 184, 187, 86 P. 2d 549; Eldredge v. Sargent, 150 Kan. 824, 829, 96 P. 2d 870 and Lewis v. Dodson, 151 Kan. 632, 635, 100 P. 2d 986), and unless the special findings clearly overthrow the general verdict the latter must be permitted to stand (Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924). With one exception we find nothing in the special findings which could be construed as requiring a judgment in favor of appellant non obstante the verdict. The exception referred to has reference to the answer to question ten. That question read: “Did she slacken her speed at any time thereafter before she met the transport, and if so, to what speed?” The answer of the jury to this question was “don’t know.” Ordinarily when a jury answers a special question “we do not know,” the answer is properly construed against the party on whom rests the burden of proof with respect to the matter to which the question relates. (Schwab v. Nordstrom, 138 Kan. 497, 27 P. 2d 242, and Darrington v. Campbell, 150 Kan. 407, 94 P. 2d 305.) This rule is subject to the limitation that where the answer to the question of necessity requires a finding as to the negligence or lack of negligence of a deceased person because of a failure to exercise due care there exists a presumption the decedent exercised due care for the protection of her own life which must be overcome by evidence. It must be remembered the only living eyewitness to this accident and the only living witness who could and did testify as to whether the decedent slackened her speed at any time before meeting the transport was Boswell, the driver of such transport, who was coming down the incline from the east at a speed the jury found was 55 miles per hour and who was preparing to drive the transport upon the bridge. He testified in substance decedent was driving about 70 miles an hour and did not decrease her speed, but the jury was not required to believe his testimony and apparently did not do so. Without his testimony, or if in the exercise of their judgment they believed it was impossible for him to make a truthful estimate of the speed at which the decedent was traveling, and they saw fit to disbelieve it, there was no testimony on which the .jury could return a finding as to whether or not she slackened her speed. There was, therefore, not only no evidence requiring a different answer to this question but no evidence to overcome the presumption the decedent was exercising due care for her own safety. Under such circumstances, notwithstanding the rule heretofore mentioned, we do not think this finding can be construed as meaning the decedent did not slacken her speed. Moreover, this answer standing by itself would not of necessity preclude a recovery in the action if from all the other evidence, and the circumstances disclosed by it, the jury believed and found the decedent, in the exercise of due care was not required to have slackened her speed before the collision with the transport. Under all the circumstances of this case as disclosed by the record we cannot say it was error for the trial court to overrule the appellant’s motion for judgment non obstante.
Other specifications of error relate to failure of the court to give certain instructions requested by appellant and to instructions given and alleged to be erroneous. We first direct our attention to three requested instructions, each of which was refused, having carefully examined and compared them with the instructions submitted to the jury. This court has repeatedly held it is not error to refuse to give requested instructions, where the instructions given by the trial court cover the same ground. (Farmer v. Central Mut. Ins. Co., 145 Kan. 951, 67 P. 2d 511; Intfen v. Hutson, 145 Kan. 389, 65 P. 2d 576; Doyle v. City of Herington, 142 Kan. 169, 172, 45 P. 2d 997 and Scheve v. Heiman, 142 Kan. 370, 47 P. 2d 70.) Our consideration of the instructions given convinces us they fairly included in impartial language the substance of those requested by appellant. There was, therefore, no error in the trial court’s refusal to give such requested instructions in the exact form and the precise language requested by appellant.
We next give our attention to a contention strenuously urged by appellant and entitled to consideration by reason of specifications of error charging the court erred in giving erroneous instructions to the jury and in overruling its motion for a new trial, one of the grounds of which was erroneous instructions of the court. It is claimed, and while the parties are not in accord on the subject must be conceded, since we have before us, after having given appellant permission to supplement its abstract, a certified copy of the proceedings had in the district court, that after the appellant’s counsel had concluded his argument to the jury) the trial court, without having submitted the same to counsel on either side and without having given them a reasonable time to suggest modifications thereof, gave the jury an instruction which is designated as instruction No. 27 and which reads as follows:
“You are instructed that if the truck driven by the driver, Boswell, was on his right side or north side of the road just before he came upon the bridge and Mrs. Sams saw it there then she had a right to presume that he would stay on his right side of the bridge and she would not be guilty of contributory negligence in driving upon the bridge on her right side of the bridge.”
Appellant insists that the giving of instruction No. 27 was an erroneous statement of law as applied to the facts of this case, and given as it was, at the conclusion of the defendant’s argument to the jury, was devastating and ruinous to its defense of contributory negligence, since its effect was to absolve Mrs. Sams of all negligence prior to the time she observed the transport entering the'bridge.
It should be here noted that our 'examination of the instructions given prior to the argument discloses they were proper and fairly stated the obligations and duties resting upon the drivers of each of the • vehicles with respect to their proper operation upon the highways and the duties and obligations resting upon each of them with respect to other persons who were driving upon such highways at the time they were operating their vehicles thereon. Therefore, if there was error in the instructions it must be found in instruction No. 27, given under the circumstances heretofore described.
Appellees challenge the right of appellant to raise any question as to instruction 27, on the ground no objection was made by appellant to such instruction at the time it was given and insist such instruction contained a correct statement of law as approved by this court in Dick’s Transfer Co. v. Miller, 154 Kan. 574, 578, 119 P. 2d 454. We pass for the moment appellees’ challenge of the right of appellant to now object to the instruction so that we may dispose of their contention such instruction contained a correct statement of the law as approved by this court. In the case cited by appellant the court was not considering instructions but a motion for judgment non obstante veredicto. All we decided in that case on the question referred to by appellees was that under the rules applicable to the determination of such a motion answers to certain special questions did not as a matter of law find the plaintiff was guilty of contributory negligence and entitle the defendant to judgment notwithstanding the verdict. That decision is in no sense authority for appellees’ contention that instruction 27, standing alone, was a correct statement of the law applicable to a situation such as was referred to therein.
We turn now to appellees’ challenge of the right of appellant to object to instruction 27. That the statute contemplates the submission of instructions to counsel for their consideration before submission of a case to a jury and the giving of such instructions before argument is clearly evidenced by G. S. 1935, 60-2909 (5), (7). However, it has been held, notwithstanding earlier cases to the contrary (Foster v. Turner, 31 Kan. 58,1 Pac. 145) that the district court has a large discretion in the matter of giving additional instructions after the jury has retired for deliberation and that only in the event of abuse, resulting in prejudice, will an exercise of that discretion be ground for reversal. (Bray v. Railway Co. 111 Kan. 60, 205 Pac. 1112; Carter v. Becker, 69 Kan. 524, 77 Pac. 264.) Although this is the rule with respect to instructions after the jury has retired, it is interesting to note that Bray v. Railway Co., supra, which expressly overruled the third paragraph of the syllabus of the opinion to the contrary in Foster v. Turner, supra, did not disturb the rule of law announced in the second paragraph of the syllabus of that case and we now have at least two early decisions in this state which have not been overruled holding — and the statute with reference to when instructions should be given to the jury was the same then as it is now — that notwithstanding the provisions of the code require the court to instruct the jury before the argument of counsel, such argument and some other things may sometimes justify particular instructions afterward but such instructions should not go beyond what is fairly authorized by the argument of counsel or some other good reason. (See Foster v. Turner, supra; Kellogg v. Lewis, 28 Kan. 535.) These cases, although they recognize the propriety of giving instructions during or after the argument, are, to say the least, indicative of the fact the trial court should be able to advance some sound reason for its action at that particular time in order to successfully avoid a charge of error based on abuse of discretion. This would seem to be .particularly necessary in a case where, after counsel for one litigant had closed his argument, an instruction, general in character, is read to the jury without having been submitted to counsel for approval and under circumstances which could easily give the jury the impression the major portion of the argument could not be reconciled or harmonized with the instruction just submitted. Without attempting to pass upon that question in this case it can be stated we can conceive of a situation where such action would be so prejudicial to the rights of a litigant as to amount to an abuse of discretion.
In our consideration of appellees’ position that instruction 27 cannot be reviewed it must be conceded the general rule is that where no objection is made to the giving of an instruction during the trial and no request was made for its modification or clarification and such instruction -is not clearly erroneous a litigant cannot be heard to complain on appeal. (Montague v. Burgerhoff, 152 Kan. 124, 128, 102 P. 2d 1031; Lukens v. First National Bank, 151 Kan. 937, 101 P. 2d 914; Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 725, 85 P. 2d 28; Jones v. A. T. & S. F. Rly. Co., 148 Kan. 686, 695, 85 P. 2d 15; Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419, and Foley v. Crawford, 125 Kan. 252, 264 Pac. 59.) Nor do we think, as contended by appellant, that any language in our decisions in Sowers v. Wells, 154 Kan. 134, 136, 114 P. 2d 828; Abramson v. Wolf, 138 Kan. 856, 859, 28 P. 2d 975, and Burns v. Hunter, 126 Kan. 736, 737, 271 Pac. 398, can be construed to mean that a litigant who fails to object to instructions of the character referred to in the cases heretofore cited can for the first time make his objections on a motion for new trial and thereby avoid the force of the rule in those cases announced. It must, however, also be conceded the rule does not apply to an instruction which is in itself erroneous and an appellant is not estopped from complaining of it as error by not having objected to it at the time it was given. (Richardson v. Business Men’s Protective Ass’n, 129 Kan. 700, 284 Pac. 599; Doyle v. City of Herington, 142 Kan. 169, 173, 45 P. 2d 890, and Lukens v. First National Bank, supra.)
Our consideration of appellees’ position on the right to appellate review of the instruction convinces us it cannot be sustained notwithstanding the existence of the general rule to which they refer and which we have here discussed. The trouble with their position is the factual situation does not permit the application of that rule. In fact, most of the decisions cited do not contemplate such a situation. They deal with the position of a litigant in cases where the instructions were given to the jury before argument and after they have been submitted to his counsel for inspection. The language in G. SL 1935, 60-2909 (7) which reads: “After the instructions have been given to the jury, the case may be argued,” must mean something, else it would have been omitted from the code of civil procedure. We think one construction which must be placed upon that language without for a moment minimizing the force of the rule is, where an instruction is submitted' at the close of an argument, suddenly and without opportunity of inspection, where counsel has not had a chance to formulate a proper objection, and where the situation is such that any objection he makes might be misconstrued by the jury to the prejudice of his client, that the same formality contemplated by the rule in cases where counsel have had an opportunity to object after submission of instructions is not required and any statement tending to indicate an objection to the instruction so given is sufficient to insure counsel the right of appellate review if on the motion for new trial his objection to the instruction, or instructions, so made is called to the attention of the trial court. Here, counsel for appellant, after the giving of such an instruction and when the trial court, basing our statement on the frank admission of such counsel, had given him an opportunity to discuss the instruction just submitted, made the statement, “I finished my argument.” We consider this statement under the existing circumstances as tantamount to the making of the objection contemplated by the rule and when later renewed on a motion for new trial was sufficient to obtain appellate review of the instruction, irrespective of whether it was so erroneous as to entitle it to review without any objection having been made.
We pass now to consideration of the language of instruction 27 as heretofore quoted verbatim. What was its effect in the instant case under the circumstances and conditions prevailing at the time it was given?
As heretofore stated, the other instructions which had been given before argument appear to have fairly stated the factual situation disclosed by the evidence and the law applicable thereto. This instruction told the jury that Mrs. Sams would not be guilty of contributory negligence in driving upon the bridge upon her right side if just before the driver of the transport came upon the bridge the transport was on its right side of the road and she saw it there. Under the circumstances, it unduly emphasized one factual situation to the exclusion of others. For all practical purposes it wiped out and nullified instructions theretofore given which set forth the duties and obligations resting upon Mrs. Sams as the driver of a car upon the highway under existing conditions. Its language was inconsistent and could not be harmonized with the language used in other instructions. It had the effect of absolving the decedent of all blame prior to the time she observed the transport entering the bridge. It, in fact, took away from appellant the defense of contributory negligence and practically told the jury the defendant had no defense. In announcing these conclusions we are not unmindful of the fact the instructions given in advance of the argument contained the admonition that all the instructions should be considered as a whole and no one instruction should be considered separately and apart from the others, but the record fails to disclose this admonition was given when instruction 27 was submitted. We •are also mindful that counsel for appellant made mention of the fact the jury had theretofore been so instructed. But the statement of counsel as an adversary was not the statement of the court and could not serve as a substitute. Even so, if the admonition had been given, it would not have been sufficient to cure the error in the instruction as given. In a somewhat extended examination of the decisions for the purpose of finding a precedent to govern a situation such as confronts us on this appeal, counsel for the parties having failed to cite one, we find one case which we think is determinative and several others which are indicative of the correctness of the rule which we are impelled to conclude is applicable to and governs the situation under the facts, circumstances and conditions here related. In Kastrup v. Yellow Cab and Baggage Co., 124 Kan. 375, 379, 380, 260 Pac. 635, we held:
“Where the court in an earlier general instruction abstractly stated the correct rule of law, but in a later one applicable to the facts in this particular case undertook to group and state all the elements necessary to a recovery against the principal, leaving out an essential element,' the earlier general instruction in which the correct rule was abstractly stated, did not operate to cure the inaccurate and incomplete one given at the end of the charge.” (Syl.lt 2.)
And in the opinion said:
“Plaintiff contends that the defect in the eleventh instruction was cured by the statements made in earlier instructions. It is true, as plaintiff contends, that all of the law of a case need not be stated in a single instruction, and if an omission in an instruction is supplied in others so that all taken together fully and consistently present the law applicable to the issues the jury are not likely to be misled. While the court in the seventh, ninth and tenth instructions recognized that the master would not be liable for an assault or injury inflicted by an agent by authority of the master unless expressly conferred or fairly implied from the nature and incidents of the employment, it will be observed that the court was there dealing with an abstract principle. In the latest instruction the court was treating the case in the concrete, the particular case in hand, and had undertaken to state all the elements necessary to' a recovery against the defendant. In that instruction the jury were told that if Earl Harris was in the employ of the defendant, and was authorized to collect the check, and committed the assault and.battery upon the plaintiff as a means to enforce the payment by plaintiff of the check, and further found that plaintiff was injured thereby, then the defendant would be liable. That was the last statement of the court on the ground of liability, and since the court undertook to group in this instruction all the elements necessary to a recovery, it is plain that the jury may have been misled. There was no question but what Harris was in the employ of the defendant and authorized to collect the check, no question but that his assault on the plaintiff caused injury, and under the last instruction the jury could find against the defendant regardless of the authority of the defendant to use force or violence in enforcing payment. The rule stated in that instruction was inconsistent with that abstractly stated in the earlier ones, and when the court returned to the subject at the end of the charge, and gave an additional .and different instruction, the jury may have inferred that the court intended as a last word to qualify the general instructions previously given. Again, the instructions being materially in conflict, the jury must have been at sea as to which rule they should follow, and no one can say which rule was applied in making their findings. It was not unnatural that they should conclude that the specific instruction dealing with the facts of this particular case should govern rather than the general instruction. In speaking of the claim that an erroneous instruction may be cured by another which is correct, it has been said:
“ ‘But while an instruction which is inaccurate or incomplete, may be cured by subsequently supplying the defect or accurately stating the law, yet if it is erroneous in that it states the wrong rule by which the jury are to be governed, it is not cured by another instruction stating the right rule as it is impossible to tell by which rule the jury was actually controlled in reaching its verdict.’ (14 R. C. L. 813.)” (p. 379.)
See, also, Schick v. Warren, 82 Kan. 90, 107 Pac. 536, which is applicable to certain phases of the situation here discussed.
In New York Life Ins. Co. v. Hunter, 32 F. 2d 173, it was held:
“If special instructions authorizing verdict for plaintiff if certain facts were found in her favor in action on life insurance policy were erroneous, prejudice would not be removed by general instruction given at outset which was qualified by such special instructions.” (Syl. IT 1.)
To the same effect is Macklin v. Construction Co., 326 Mo. 38, 31 S. W. 2d 14:
“Instruction omitting necessary element is erroneous, and cannot be cured by including omitted elements in other instructions, unless such instructions are properly referred to.” (Headnote 16.)
Instruction 27 as given was out of harmony with the other instructions, and resulted in giving emphasis to it without regard for the others to the probable disadvantage of defendant and in our opinion resulted in an unfair trial. Standing alone, as we conclude it did, when given at the time and under the circumstances here related it was erroneous and its submission to the jury under such conditions was error and required the granting of a new trial.
Appellant contends the undisputed evidence convicts the decedent of contributory negligence as a matter of law and requires a directed judgment in its favor. Under all the evidence and circumstances of this case we are not convinced that contention is sound. (Dick’s Transfer Co. v. Miller, supra; Duncan v. Branson, 153 Kan. 344, 110 P. 2d 789; Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550, and Balano v. Nofziger, 137 Kan. 513, 21 P. 2d 896.)
The judgment appealed from is reversed and the cause is remanded with directions to grant a new trial.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when a taxicab in which plaintiff was riding collided with another car. Judgment was for the defendant, sustaining its demurrer to plaintiff’s petition.
It will be noted that the action is against an insurance company. The petition alleged that the defendant was a corporation engaged in issuing policies of insurance whereby it insured persons against loss from liability imposed by law; that defendant had been permitted by the city of Leavenworth to issue its policy of liability insurance to persons engaged in operating taxicabs upon the streets of Leavenworth and vicinity and that it issued its policy to one John Carre in compliance with the ordinance of the city of Leavenworth, which provided as follows:
“Section 1. Each person making application for an owner’s taxicab license shall procure within thirty days after the approval of such owner’s taxicab license public liability and property damage insurance in some insurance company upon which service can be had in the City of Leavenworth, Kansas, as follows: five thousand ($5,000) dollars personal liability injuries, or death to any one person in any one accident; ten thousand ($10,000) dollars liability for injuries or death of more than one person in any one accident; five thousand ($5,000) dollars property damage in any one accident; such policy of insurance shall be filed with the City Clerk and retained by him as long as said taxicab license shall be in full force and effect.”
A copy of the policy issued pursuant to the above ordinance was attached to the petition. The petition then alleged that John Carre was the operator of a taxi service known as the Service Cab Company and that he was operating his business under and by virtue of a policy issued by defendant' as provided by the above ordinance; that on a certain day plaintiff became a passenger for hire of John Carre to a point beyond the limits of the city of Leavenworth and that on his return while still outside the city the plaintiff was injured on account of the careless and negligent manner in which Carre operated his taxi. There were other allegations as to the extent of the injury sustained by plaintiff, which we do not need to mention here. The petition also alleged that the defendant was a foreign corporation organized under the laws of New York; that none of its officers or directors had their residence in the state of Kansas at the times mentioned in the petition.
The defendant demurred to this petition on the ground that it did not state a good cause of action against the defendant. This demurrer was sustained and judgment was given for the defendant — ■ hence this appeal.
The defendant argues first that the plaintiff had no direct cause of action against the underwriters, and in his petition stated no cause of action against them; second, that the petition on its face showed that the plaintiff’s action was barred by the two-year statute of limitations; third, that the petition was defective because it did not allege performance of conditions precedent to recovery on the policy.
The plaintiff places his right to bring this action direct against the company on what this court held in Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918. This contention will require an examination of what we held in that case. That was a case where one who was engaged in the operation of a mqtor truck within the motor-carrier statute was sued on account of causing the death of one traveling on the highway. The insurance company with which he carried a policy of insurance as a contract motor carrier was joined with him in the action. He carried this insurance policy on account of section 21 of chapter 236 of the Laws of 1931, same being G. S. 1935, 66-1,128. That section reads as follows:
“No certificate or license shall be issued by the public service commission to any ‘public motor carrier of property,’ 'public motor carrier of passengers,’ ‘contract motor carrier of property or passengers’ or ‘private motor carrier of property,’ until and after such applicant shall have filed with, and the same has been approved by, the public service commission, a liability insurance policy in some insurance company or association authorized to transact business in this state, in such reasonable sum as the commission may deem necessary to adequately protect the interests of the public with due regard to the number of persons and amount of property involved, which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such carrier. No other or additional bonds or licenses than those prescribed in this act shall be required of any motor earner by any city or town or other agency of the state.”
The insurance company in that case contended that the right of action had not accrued for the reason the liability of Jones had not been established by judgment. Thus we had the question of whether or not under the facts in that case the action could be brought direct against the insured. The effect of the decision was that on account of the provisions of G. S. 1935, 66-1,128, the policy was the sort of a policy which permitted the action to be brought directly against the insurance company. We read the terms of the statute into the policy. It should be noted that the statute in that case provided that the policy should be one of liability insurance which should bind the obligors thereunder to pay compensation for injuries to persons and loss or damage resulting from the operation of the carrier. It was made clear, however, that the conclusion reached was on account of the wording of the particular statute.
Since the decision in the Dunn case we have decided the case of Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276. In that case a highway contractor and the insurance company, which carried his public liability insurance, were joined in an action on account of personal injuries sustained by a traveler on the highway. The plaintiff contended that the action could be brought direct against the insurance company and hence the two could be joined in an action, and relied on the Dunn case. We reexamined the case of Dunn v. Jones, supra, and pointed out that the result of that case was reached because of the particular statute under which the policy was issued and that the terms of the statute were read into the policy. We pointed out that a liability policy as distinguished from indemnity insurance may be either one in which the insurer assumes liability to answer direct to the injured party or in which the insurer’s liability attaches immediately upon the securing of a judgment against the insured and that therefore it does not necessarily follow that there is a direct right of action against the insurer by the injured party merely because the policy is termed a liability policy.
In the instant case the policy itself provides that the company insures against liability imposed by law upon assured for damage as a result of the ownership, maintenance or use of the vehicles described; the company agrees to investigate accidents, to pay costs of suits against assured and interest on any judgments, to pay for such medical aid as might be necessary at the time of accident; to extend the coverage to such persons as might be operating the vehicle at the time, with the permission of the assured, and that the insolvency of the assured would not relieve the insurer. The policy also provided that the assured would not acknowledge any liability on account of any accident; that the insurer should have the exclusive right to settle any claim or suit; that in case of loss under the policy the insurer should be subrogated to all rights of the assured; that the insurer should be liable to the person entitled to recover damages caused by the assured in the same manner that the underwriters were liable to the assured; that such liability might be enforced by the person entitled to recover by an action against the insurer commenced after the rendition of final judgment in favor of such person and against the assured, and that no action singly or jointly by the assured, the injured or any other person should lie against the underwriters to recover upon any claim or for any loss under this policy unless brought after and within two years of the date upon which the amount of such claim or loss shall have been fixed and rendered certain either by judgment against the assured after trial’ of the issue or by agreement between the parties with the written coiisent of the underwriters. It is clear that the policy itself by its own terms did not contemplate that an action could be brought directly against it. It is the sort of a policy that was characterized as a liability policy in Brandon v. St. Paul Mercury Indemnity Co., 132 Kan. 68, 294 Pac. 881. The liability of the insurer did not accrue until' after judgment had been established against the assured. This opinion was cited and followed by this court in the case of Burks v. Aldridge, supra. The plaintiff, however, argues that since the policy in this case was issued pursuant to the city ordinance, a copy of which has already been set out in this opinion, that ordinance should be read into and made a part of the policy and that when this is done we will reach the same conclusion as was reached when we read the statute into the policy in the Dunn case.
We have examined the ordinance, however, and find that it does not contain provisions similar to those contained in G. S. 1935, 66-1,128. The ordinance simply provides that the person making application for a taxicab license shall procure public liability and property damage insurance. It then goes on to provide as to the amounts of the insurance and that it must be with a company upon which service can be had in Leavenworth.
The statute provides, on the other hand, that the liability insurance shall bind obligors thereunder to pay compensation for injuries to persons and loss or damage to property resulting from the negligent operation of such owner. It was these provisions, together with a realization of the broad general purpose of the statute, upon which we based our opinion in the Dunn case. We do not find analogous language in the ordinance. Its provisions fall far short of requiring taxi operators to have a policy which will permit an action to be brought directly against the insurer. We have concluded, therefore, that under the policy issued to the defendant in this case the insurer was not liable until liability had been established against the insured, John Carre. No action had been brought against John Carre and hence no liability has been established against him. Neither the policy nor the ordinance nor both construed together give the injured party the right to bring an action against the insurer direct.
The conclusion that has been reached thus far in this opinion would require an affirmance of the judgment of the trial court sustaining the demurrer of the defendant to the petition. However, there is one other question in the case which merits discussion. The action was brought on the theory that the ordinance quoted required the taxi driver to carry a liability insurance policy for the benefit of the public. The right to bring the action directly against the insurance company is based on that ordinance. The petition discloses that the injury to the plaintiff occurred while the taxi in which he was riding was being driven outside the limits of the city of Leavenworth.
In Schoonover v. Clark, 155 Kan. 835, 130 P. 2d 619, we considered a case where a casualty insurance company, which had issued a policy on a truck operated as a licensed carrier under the requirements of the statute was joined with the operator of the truck in an action to recover damages. This court examined the record and concluded that the truck upon which the policy was issued was not being used as a licensed carrier at the time of the injury and on that account the policy was one of indemnity only and the insurer could not be joined as a party defendant.- In that case there was no doubt but that the statute required the carrier to have a liability policy. This court conceded that had the injury occurred while the truck was being used as a licensed carrier the company could be joined in the action. We said, however:
“On the other hand, if the principal defendant was not engaged directly or incidentally in the pursuit of his business as a licensed carrier, then under the terms of the policy issued by the defendant casualty company its liability was merely one of an indemnitor, and it could only be subjected to a judgment, if at all, when a judgment had been obtained against the principal defendant. (Smith v. Republic Underwriters, 152 Kan. 305, 308, 103 P. 2d 858; Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276; Farm Bureau Mut. Automobile Ins. Co. v. Daniel, 104 F. 2d 477, and Commercial Standard Ins. Co. v. Foster, 31 F. Supp. 873; same case on appeal, 121 F. 2d 117.)” (p. 837.)
By analogy even if it be conceded that the ordinance in this case required a taxi driver to have a policy which would permit an action for damages to be brought directly against the insurer, still the fact that the accident occurred outside the city limits where the ordinance was of no effect would require a holding that this policy was not one which would permit the action to be brought directly against the insurer, as applied to that particular injury. This is a further reason why the judgment of the trial court sustaining the demurrer of the defendant to the petition of plaintiff was not erroneous.
The judgment of the trial court is affirmed.
Harvey and Wedell, JJ., concur in the result.
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OPINION ON MOTION FOR REHEARING
The opinion of the court was delivered by
Wedell, J.:
This case is here on a motion for rehearing. It was an original action in quo warranto to oust The Sage Stores Company, a Kansas corporation, from doing a general merchandising business in this state but more particularly to prevent it from selling a filled-milk product made and distributed by the defendant Carolene Products Company on the ground its sale was prohibited by G. S. 1935, 65-707. Plaintiff, the state of Kansas, prevailed as a result of a four-to-three dicision.
The action was brought in the name of the state on the relation of Attorney General Jay S. Parker, who is now a justice of this court.
The first contention of defendants is that Mr. Justice Parker, who concurred in the majority view, was disqualified to participate in the decision and that, his participation constituted a denial of due process of law in violation of the fourteenth amendment to the federal constitution.
At the outset we are confronted with plaintiff’s contention that defendants cannot now raise the question of disqualification for the reason that they waived any objection to Mr. Justice Parker’s participation by failing to object to his sitting in the case when it was orally argued before this court and objected only after they discovered he had joined in the majority view against them. In that view ’defendants do not concur. They argue that when the justice retained his seat after the case was called for oral argument they assumed he was doing so as an interested spectator who desired to hear the arguments because it was an important case in which he had been the relator plaintiff and that it did not occur to them he would participate in the decision. The question of waiver is an interesting one, but we prefer to go directly to the merits of the contention on disqualification.
In answer to the motion for rehearing plaintiff has filed the affidavits of J. C. Mohler, secretary of the state board of agriculture, and of C. Glenn Morris and Warden L. Noe, special assistant attorneys general. Mr. Morris was chief counsel and directed the litigation with the assistance of Mr. Noe in both 'cases hereinafter mentioned. In the first case they represented the defendants, state officials, to be named presently. In the instant action they represented plaintiff, the state of Kansas. The affidavits contain a rather complete history of this and of the former case involving the same filled-milk statute. That history, among other things, discloses the parties to and the nature of the respective actions, the substance of the decision in the former action and the nature and character of the relation of Jay S. Parker, attorney general; to those cases.
There is no contention the affidavits do not constitute a substantially accurate statement of the facts pertaining to Attorney General Parker’s relation to the respective cases. Pertinent portions of the affidavits in substance disclose the following facts:
The state board of agriculture and the state dairy commissioner are charged by law with the enforcement of the milk and dairy laws of this state. In 1938 one of the defendants in the instant quo warranto action, namely, Carolene Products Company, instituted a suit in the district court of Shawnee county to enjoin J. C. Mohler, -secretary of the board of agriculture, and H. E. Dodge, dairy commissioner of the state, from enforcing this identical statute against a similar filled-milk product. The action was instituted while Clarence V. Beck was the attorney general of this state. That action had been tried in the district court and was pending on ap peal in this court when Jay S. Parker became attorney general in January, 1939. The case was decided in- June, 1940. It was determined the statute was constitutional as a health measure although it prohibited the sale of a product assumed to be wholesome. (Carolene Products Co. v. Mohler, 152 Kan. 2, 102 P. 2d 1044.) Attorney General Parker had in nowise counseled or assisted in conducting that litigation. Mr. Morris, an assistant attorney general, handled that litigation.
Sometime after that decision counsel for Carolene Products Company advised Mr. Morris it had made some changes in the constituent elements of its product (for changes see opinion in instant case, State, ex rel., v. Sage Stores Co., ante, p. 404, 141 P. 2d 655); that it had placed the new product with retailers in this state; if t’hey were prosecuted for its sale under the statute, Carolene Products Company would defend the prosecutions and raise the constitutionality of the statute. The state board of agriculture and the state dairy commissioner wanted the statute enforced. They and Mr. Morris agreed an original action in quo warranto should be instituted in this court and they sought the permission of Attorney General Parker to file such an action in the name of the state on the relation of the attorney general. The permission was granted and they filed the instant action with the understanding the litigation should be conducted at the expense of the state board of agriculture. Attorney General Parker permitted them to file the action for the reason the enforcement of the statute was a matter of public concern and in order that any question which might arise in connection with its enforcement could be adjudicated in this court. In the conduct of the instant litigation which followed, Attorney General Parker in nowise personally or officially took any active part. He was not consulted concerning any issue of fact or law involved nor did he advise concerning the same. While his name was signed to pleadings by Mr. Morris, Attorney General Parker was only nominally or officially attorney for the state, the active attorney and general counsel for the state being Mr. Morris, who was assisted by Mr. Noe, attorney for the state board of agriculture. Shortly after the instant action was filed Mr. Morris resigned as assistant attorney general to enter the private practice. Mr. Morris was then employed by the state board of agriculture to continue to act as chief counsel in the case and that board agreed to pay for his professional services. He has been and is being paid by the state through the state board of agriculture. Upon request of the state board of agriculture the attorney general appointed Mr. Morris a special assistant attorney general in order that he might have the proper legal status in the litigation.
From the foregoing uncontradicted facts it is clear Attorney General Parker did not give the facts nor the legal questions involved in the instant action his personal attention.
If prior to the filing of the instant action or during its pendency the attorney general entertained a personal opinion relative to the subject matter involved, it did not, under the facts presented, result from his active participation in either of the lawsuits mentioned. Manifestly any view he might have entertained as to the subject matter, which view was unrelated to his participation in the litigation, could not and did not disqualify him from serving as a justice of this court. (30 Am. Jur., Judges, §§74, 76, 83; Barber County Comm’rs v. Lake State Bank, 123 Kan. 10, 13, 254 Pac. 401.) If the rule were otherwise, probably few lawyers, if any, could qualify to serve in that capacity.
At any rate, one thing is obvious. It is that prior to the filing of the instant action and at the time the previously mentioned state officials asked permission to file this action in order that they might enforce the statute, the constitutional validity of the statute had already been established with respect to a filled-milk product assumed to be wholesome. (Carolene Products Co. v. Mohler, 152 Kan. 2, 102 P. 2d 1044.) Manifestly whén the subject of the appropriate method or vehicle for the enforcement of the statute was being considered there was no need or occasion for the attorney general to form an independent and personal opinion relative to the constitutional validity of the statute. That issue, whether decided rightly or wrongly in the former case, had been settled. As attorney general he was bound by the decision. Thereafter the problem was one of enforcement. Quo warranto was an appropriate method of enforcement. The statute having been upheld as a public health measure, its enforcement became a matter of public concern and duty. As attorney general Mr. Parker was willing and consented to have the name of the state used by state officials charged with the duty of enforcing the statute.
Under the existing circumstances was Mr. Justice Parker disqualified from participating in this decision?
In 30 Am. Jur., Judges, sections 74 and 76, we find the following:
“At common law, bias or prejudice on the part of a judge, not the result of interest or relationship, is not supposed to exist, and generally it does not incapacitate or disqualify a judge to try a case, unless the Constitution or statute so provides.
“The words ‘bias’ and ‘prejudice’ as used in the law of the subject under consideration refer to the mental attitude or disposition of the judge toward a party to the litigation, and not to any views that he may entertain regarding the subject 'matter involved.”
A judge is not disqualified because he is interested in the question to be decided where he has no direct and immediate interest in the judgment to be pronounced. In 30 Am. Jur., Judges, section 57, the rule pertaining to interest is stated thus:
“To work a disqualification, the interest must be a direct, certain, and immediate interest, and not one which is indirect, contingent, incidental, or remote.” (See numerous decisions in footnotes.)
To the same effect are also Evans v. Gore, 253 U. S. 245, 64 L. Ed. 887; Brinkley v. Hassig, 83 F. 2d 351, 357. In the Evans case the question presented was the power of the federal government to tax the net income of a United States district judge, including his salary or compensation from the government. The federal constitution in effect provides the compensation of judges, both of the supreme and inferior courts, shall not be diminished during their continuance in office. It was the contention of plaintiff the taxing act was repugnant to the above constitutional limitation in that the tax by its necessary operation and effect diminished his compensation. The compensation of judges of the supreme court of the United States was, of course, indirectly affected by their decision. The court, however, held the question involved in the particular case was one which pertained to plaintiff’s own compensation in which no other judge could have a direct personal interest and that there was no other appellate tribunal to which plaintiff under the law could go. While the members of that court, in view of their close relation to the question, expressed regret that the solution of the 'question should fall to them, it was determined the court could not decline or renounce jurisdiction of the case as plaintiff was entitled to invoke its jurisdiction on a question pertaining to his own compensation. The opinion in the Brinkley case, supra, which pertained to the revocation of Doctor Brinkley’s license to practice medicine and surgery in this state, emphasizes the opinion in the Gore case. That opinion will receive our attention presently.
This court on two previous occasions has considered the subject of disqualification of one of its justices who was a former attorney general. In each case, as in this one, the constitutional right to a decision-of this court would have been denied if the challenged justice had been held disqualified. (Barber County Comm’rs v. Lake State Bank, supra; Aetna Ins. Co. v. Travis, 124 Kan. 350, 259 Pac. 1068.) In the last cited case in which the attorney general, as in the instant case, had not actively participated in the case then before this court, it was held:
“A member of this court who was attorney general at the time an action was brought in the district court against the superintendent of insurance, which action was defended by assistants in the' office of the attorney general, is not for that reason disqualified to sit on the hearing of the appeal of such case in this court.” (Syl. If 1.)
In the first cited case in which the justice, as attorney general, had taken no part in the preparation or trial of the case then before this court but had to some extent participated as attorney general in a former case, between some of the same parties, involving an issue germane to the case in which his qualifications were challenged it was held:
“An attorney general who is elected to the supreme court is not disqualified to sit in an action commenced after he was elected to the supreme court, but which involves a principle of law and an issue of fact which were embraced in an action in which he as attorney general took part and which was tried and determined before the second action was commenced.” (Syl.)
In the course of the opinion in the Barber County Comm’rs case it was stated:
“The court takes judicial notice of the fact that the attorney general’s office is a busy place and uses a number of lawyers, all of whom are constantly at work on legal questions that arise on matters of public concern in the state. If an attorney general, afterward elected to the supreme court, is disqualified to sit in a case in which some legal question involved was passed on by him or his office as attorney general, there will not be many cases before the supreme court in which he can take part, because a large part of the entire field of law will have been under examination and discussion at some time during his two consecutive terms of office as attorney general.” (Emphasis supplied.) (p. 13.)
The opinions in our former cases reviewed the common law ruling of disqualification of judges. The basis of disqualification under that rule was a pecuniary interest. The opinions noted the fact that our legislature had undertaken to legislate upon the subject of •disqualification of judges and that in so doing it provided that dis trict and probate judges were disqualified by reason of having been of counsel for one of the parties previous to becoming a judge of such a court and that where such disqualification existed, provision was made, in district court cases, for calling in another judge, or selecting a judge pro tern, to try the case and that a similar provision was made as to probate judges. The opinion in the Aetna Ins. Co. case, supra, stated:
“No provision, of our constitution, or of our statute, prescribes conditions under which a member of this court is disqualified from sitting. Neither is there any provision of our constitution or statute for calling another judge to sit in lieu of one who may be disqualified. The framers of our constitution evidently took the view that any person who had the standing and qualifications to become a member of this court would not be presumed to be biased or prejudiced by reason of the fact that some time prior to becoming a member of the court he had been an attorney for one of the parties in the action, and our legislature obviously has consistently entertained the same view. Hence there is no legal disqualification of a member of this court to sit in a cause, unless it can be said to be the common-law reason for disqualification of one who had a pecuniary interest in the result of a cause. We need not decide in this case whether that would be a disqualification, for it is not contended by plaintiffs that Justice Hopkins, or any other member of this court, is disqualified for that reason.” (p. 354.)
To the same effect is Barber County Comm’rs v. Lake State Bank, supra. There is no contention Mr. Justice Parker is disqualified under the common law rule of pecuniary interest. He is not disqualified by our constitution or statutory provisions.
There are occasions when a justice, although not legally disqualified, may prefer not to participate in a decision in order to avoid any possibility of suspicion of bias or prejudice. That attitude is commendable and this court has recognized and applied it frequently so long as it did not result in denying to a litigant his constitutional right to have the presented question adjudicated. In other words, preferences frequently serve a good and useful purpose but when they come in conflict with official duty, the former must yield. In Barber County Comm’rs v. Lake State Bank, supra, where the members of this court were equally divided without the participation of Mr. Justice Hopkins; formerly attorney general, the court concluded:
“Justice Hopkins is not disqualified to act as a member of the court in this case. He might, with propriety, decline to sit, until it becomes necessary for him to act in order that the court may reach a conclusion. Under the circumstances that now exist, it is necessary for him to take his share of the burden that is on the court.” (p. 15.)
When the instant case came on for oral argument before this court all members thereof were present. No objection had been made to Mr. Justice Parker’s participation in the case and he remained on the bench. When the case was reached for conference Mr. Justice Parker voluntarily expressed a preference not to participate in the conference or decision unless his official duties as a member of this court required him to do so. This request was freely granted. He remained in the conference but took no part therein until after it developed his vote was necessary for a decision. The court was of the opinion he was not disqualified to participate and that under the circumstances it was his duty to do so.
While our previous cases, as the instant one, pertain to participation of justices who were not legally disqualified, it is well established that actual disqualification of a member of a court of last resort will not excuse such member from performing his official duty if failure to do so would result in a denial of a litigant’s constitutional right to have a question, properly presented to such court, adjudicated. (Barber County Comm’rs v. Lake State Bank; Aetna Ins. Co. v. Travis; Brinkley v. Hassig; omnia supra.)
The rule is based upon what judges and text writers frequently refer to as the Doctrine of Necessity. In the Barber County Comm’rs case we quoted the following statement from Philadelphia v. Fox, 64 Pa. 169, 185, with approval:
“ ‘The true rule unquestionably is that wherever it becomes necessary for a judge to sit, even where he has an interest' — where no provision is made for calling another in, or where no one else can take his place — it is his duty to hear and decide, however disagreeable it may be.’ ”
See, also, other cases cited in our opinion.
In the Aetna Ins. Co. case we stated the principle thus:
“Since there is no method provided by our constitution or statute for having another person sit as judge of this court, if one or more members should be disqualified in a case, it necessarily follows that they must sit, when their views are necessary to a decision. There is no way in which questions may be decided in this court except by the decision of the members of the court. . . . This court is organized to decide cases. There is no substitute for it, or for any one of its members, in our scheme of government. Litigants are entitled to have the essential questions in their cases decided, and the members of this court cannot avoid the duty of deciding them (33 C. J. 989, and cases there cited), and certainly cannot do so for reasons that are legally insufficient.” (p. 354.)
In the Brinkley case the rule was stated as follows:
“From the very necessity of the case has grown the rule that disqualification will not be permitted to destroy the only tribunal with power in the premises. If the law provides for a substitution of personnel on a board or court, or if another tribunal exists to which resort may be had, a disqualified member may not act. But where no such provision is made, the law cannot be nullified or the doors to justice barred because of prejudice or disqualification of a member of a court or an administrative tribunal. In Evans v. Gore, 253 U. S. 245, 40 S. Ct. 550, 64 L. Ed. 887, 11 A. L. R. 519, a question arose in which the members of the court had a direct personal financial interest. Adverting to this regretful circumstance, the court declined to renounce jurisdiction which appellant was entitled to invoke since ‘there was no other appellate tribunal to which under the law he could go.’ Cases have arisen where all the members of state supreme courts have been jointly sued by disappointed litigants; confronted with the choice of denying the suitor his right of appeal or hearing it themselves, the courts have heard the appeal. An exhaustive note gathering and analyzing the cases from twelve states and from England and Canada may be found in 39 A. L. R. 1476. Other authorities may be found in 42 L. R. Á., n. s., 788, L. R. A. 1915E, p. 858, and in 33 C. J. 989, and 15 R. C. L. 541.” (Brinkley v. Hassig, 83 F 2d 351, 357.)
In 15 R. C. L. 541 it is said;
“It is well established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where, if applied, it would destroy the only tribunal in which relief could be had. The true rule unquestionably is that wherever it becomes necessary for a judge to sit, even where he has an interest, if no provision is made for calling another in, or where no one else can take his place, it is his duty to hear and decide, however disagreeable it may be. The" rights of the other party require it. The same rule obtains in the English courts.” (Sec. 29.)
To the same effect are the numerous cases cited under the treatment of the same subject in 30 Am. Jur., Judges, § 55.
Defendants argue the relation of the attorney general in the two> Kansas cases previously mentioned is not comparable to his relation, to the instant case. They contend his alleged disqualification in those cases arose merely out of the position he had taken while performing his statutory duty of defending actions instituted against state officials. They call attention to the fact the attorney general is not only authorized on his own motion to institute actions in quo' warranto to revoke articles of incorporation of domestic corporations when they have abused their corporate powers (G. S. 1935,. 60-1603) but that under the provisions of G. S. 1941 Supp. 17-4003 it is made the duty of the attorney general to institute such actions. They, therefore, contend it is within his discretion to determine whether such an action shall be instituted and that he must necessarily give that matter his personal attention.
As an abstract proposition there is merit in some of these contentions. But let us examine them realistically with a view of determining the actual merit of the contention of disqualification as applied to the instant case.
We do not concur in the contention that there exists in principle a valid or substantial distinction between the previous assertion of a legal position in the defense of an action and the assertion of a previous legal position in the prosecution of an action insofar as the subject of disqualification is concerned.
We concur in the next contention that the attorney general is vested with discretion in determining whether he will institute or whether he will permit an action in quo warranto to be instituted for the purpose of determining whether the corporate powers, privileges or franchises of a domestic corporation have been abused. But realistically just what was the nature of the discretion which remained for the attorney general to exercise after our decision in Caroline Products Co. v. Mohler, supra, and how did the exercise of that discretion disqualify him to decide the controversy now before this court? As heretofore stated, after that decision the only subject upon which it was necessary for the attorney general to exercise discretion was the subject of the appropriate method of enforcing the statute and not whether the statute constituted a valid health measure which could be enforced. The controverted issue now before this court does not pertain at all to the subject on which the attorney general exercised his discretion, namely, whether quo warranto constituted an appropriate action for the enforcement of the statute. The controversy now is on the issue, or issues, which defendants have raised in that action and with respect to the determination of those issues, as previously indicated, Mr. Justice Parker was not disqualified.
Defendants argue if he is permitted to participate in this decision the plaintiff will be the judge of his-own lawsuit. The contention is not sound. The sovereign power, the state, and not the attorney general, is the plaintiff. In quo warranto the state demands the writ from the court through the medium of its chief law officer requiring the respondent to show why it should not be shorn of its powers. In the proceedings the attorney general has no personal interest, direct or otherwise. His personal interest is not affected directly or remotely by the judgment or decree. In such a proceeding he is supposed to be impartial and to seek only the vindication of the rights of the state. (State, ex rel., v. Village of Kent, 96 Minn. 255, 104 N. W. 948, 1 L. R. A., n. s., 826, and case note in l. c.; Commonwealth v. Walter, 83 Pa. 105, 107; State, ex rel., v. S. H. Kress & Co., 115 Fla. 189, 201-203, 155 So. 823.) He was not the plaintiff.
Defendants direct our attention to the case of Turney v. Ohio, 273 U. S. 510, 71 L. Ed. 749. It is not in point. In that case the mayor of a village in the state of Ohio was declared disqualified to try a defendant for violation of the liquor laws. The first disqualification resulted from the receipt of substantial sums of money which he collected for himself as costs in case of conviction which gave him a direct pecuniary interest in the outcome of the trial. The second disqualification resulted from his official motive to convict.
The final contention of defendants is that failure of states to provide a judicial system which eliminates all suspicion of partiality renders its decisons invalid under the due process clause of the federal constitution and in support thereof cite Norris v. Alabama, 294 U. S. 587, 79 L. Ed. 1074; Smith v. Texas, 311 U. S. 128, 85 L. Ed. 84; Hill v. Texas, 316 U. S. 400, 86 L. Ed. 1559.
Manifestly the statement is too broad and the decisions cited do not support it. It readily will be conceded generally by both lawyers and judges that next to the importance of a just decision is the fact that the decision should be reached in such a manner as to avoid reasonable suspicion as to the fairness and integrity of the court that renders it. (Tootle v. Berkley, 60 Kan. 446, 56 Pac. 755; State v. Johnson, 61 Kan. 803, 60 Pac. 1068.) Certainly legislatures and courts have no higher duty to perform than that of safeguarding these fundamental concepts. With these concepts in mind we have set forth the reasons which in our opinion require the instant decision as applied to the conceded facts. In view of those facts we have no hesitancy in concluding Mr. Justice Parker was not disqualified, but with propriety refrained from participating in the decision until his official duties required him to do so. Having concluded he was not disqualified, there is, of course, no need for resting the instant decision on the well-established doctrine of necessity as applied to disqualified judges.
Other contentions made in the motion for rehearing with respect to the merits of the decision have been examined and considered. As to these there is no change in the views of the respective members of the court and the motion is therefore denied.
Mr. Justice Parker did not participate in that part of the motion for rehearing which pertains to the subject of his qualification.
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The opinion of the court was delivered by
Dawson, C. J.:
This is a rehearing. The original opinion was filed on May 8, 1943. (156 Kan. 788, 137 P. 2d 222.)
The present question is whether this action for specific performance, if sufficiently maintained, presents a situation which takes it out of the ordinary rule that equity will not specifically enforce an oral contract to devise real property by will when the promisee can be adequately compensated in money for breach of such contract.
Counsel for appellants contend that the rule announced in the syllabus, paragraph 7, and the corresponding portion of our opinion is too broadly stated, and is not in accord with other decisions of this court pressed on our attention.
In deference to this contention we have reexamined our own precedents on this question. But, first, to briefly restate the issues: It will be recalled that the oral contract alleged and which plaintiff seeks to enforce was made during harvest time in 1932. It was alleged that the owners of the land involved herein stated to plaintiff at that time that—
“They desired the petitioner, in the future, to take full charge and control of the said real estate and further requested that instead of having them come to Sumner county, Kansas, to make settlement that he come to Boonville, Missouri, to make settlement each year.
“. . . that they desired to have for themselves, and the survivor of them, all of the income and profit from the real estate so long as either of them might live; but that if the petitioner would continue to render services to them in the future as he had in the' past, that they would so prepare their wills that upon the death of the survivor of them, he, the said J. B. Henry, would receive as payment for services rendered in the past and to be rendered in the future and would become the owner of, by bequest and devise, the following described real property in Sumner county, Kansas, [240 acres described.]”
Plaintiff alleged that he thereupon agreed to perform the specified services, and—
“11. That the said J. B. Henry thereupon stated to Minnie G. Henry and J. S. Henry that the said real estate would constitute ample payment for the services which he' had rendered in the past and for the services which he might render in the future; and he further stated to the said Minnie G. Henry and J. S. Henry that he would render the said services to the'm and to the survivor of them without regard to how long they or either of them might live, and take said land as payment.”
Elsewhere in his petition plaintiff alleged that the services which he was to render and did render were those “commonly rendered by an agent to a principal in looking after and managing real estate.”
Touching the value of his alleged services pursuant to that oral contract plaintiff testified, “In my opinion, my services were worth $300 a year since 1906.”
For present purposes we ignore defendant’s timely objection that this testimony by plaintiff pertained to a transaction he had had with deceased persons, in disregard of the civil code, G. S'. 1935, 60-2804. And in our first opinion we held that even if the alleged oral contract of 1932 were intended to obligate the promisors for past services, it would be unenforceable to that extent, under another pro vision of the code, G. S. 1935, 60-312, which will only allow such an action when the alleged promise has been made in writing.
There was some other testimony touching the value of plaintiff’s services but none more direct and positive than his own; and it is obvious that plaintiff’s own testimony was accepted as the truth by the trial court, although its computation of their total value was for 36 years instead of 8 years and 10 months — from the making of the contract in August, 1932, until the death of Mrs. Minnie Henry in June, 1941. Three hundred dollars per year for 8 years and 10 months amounts to $2,650, as the monetary value of plaintiff’s services which he alleged that he performed under the alleged contract.
The testimony to which the trial court gave credence, and about which there was little dispute, was that the 240 acres of land claimed by plaintiff was worth $42 per acre, “something like ten thousand dollars.”
If specific performance should be decreed in this case rather than monetary compensation based upon plaintiff’s own valuation of his services under the oral contract of 1932, he will be given judgment in land to the extent of three to four times the value of his services. Before such a judgment could be rendered, a considerable question would have to be disposed of which a court of equity could not ignore. The textbooks and our own cases generally hold that specific performance even of a written contract or where some written memorandum of its acknowledgment is not wanting, will not be enforced unless it is fair and equitable; and that a court of equity will give no aid to the enforcement of hard or inequitable bargains, but will remand the aggrieved party to his action at law or will itself grant damages for the breach. (Fowler v. Marshall, 29 Kan. 665; Bird v. Logan, 35 Kan. 228, 10 Pac. 564; Reid v. Mix, 63 Kan. 745, 66 Pac. 1021; Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202; Young v. Schwint, 108 Kan. 425, 195 Pac. 614; Milling Co. v. Waite, 112 Kan. 809, 213 Pac. 160; Bowen v. Galloway, 125 Kan. 568, 264 Pac. 1038 and citations; Haston v. Citizens State Bank, 132 Kan. 767, 297 Pac. 1061; Merwin’s Equity and Equity Pleading, 407; 25 R. C. L. 221; 58 C. J. 951, 954, 955, 1208.)
Fundamentally it is the frequent inadequacy of an award of damages for breach of contract which supplies the foundation for relief by decree of specific performance — where the consideration rendered by the promisee cannot be adequately compensated in money. Our own decisions, particularly in respect to the enforcement of oral contracts for the devise of real property, have uniformly recognized this principle.
We have had many cases where the circumstances showed quite clearly that the services promised under the oral contract to devise or convey land could not be adequately compensated in money. Typical of these was Bateman v. Franklin, 114 Kan. 183, 217 Pac. 318, the syllabus of which states the facts and the rule of equity applied:
“An oral promise of an uncle and aunt to their nephew, a minor, that if he would come and live with them and render them dutiful obedience and service as their own child until he attained his majority, at the death of the survivor of them they would leave him half their farm or half its proceeds, when accepted and fully performed by the nephew is an enforceable contract against the administrator of the estate of the last surviving obligor, and the statute of frauds is no bar to an action thereon, nor is the statute of limitations a bar thereto if the action is timely begun against the administrator.”
In a wide variety of cases, specific performance of contracts concerning land has been judicially upheld, whether the contracts were oral or written, where the intimate and peculiar services rendered by the aggrieved party could not be adequately compensated in money, and where it would be inequitable to withhold specific performance. (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Phillips v. Bishop, 92 Kan. 313, 140 Pac. 834; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596, and citations; Cathcart v. Myers, 97 Kan. 727, 156 Pac. 751; Taylor v. Holyfield, 104 Kan. 587, 180 Pac. 208; Lyons v. Lyons, 114 Kan. 514, 220 Pac. 294; Greiner v. Greiner, 131 Kan. 760, 293 Pac. 759.)
In most of the cited cases sounding in equity, where specific performance of contracts concerning interests in land was concerned, due consideration has been given to the fact that the land in controversy may have had a peculiar value to the promisee, for example, it might be the family homestead, or land the promisee desired for a home, or land of which he had already taken peaceable possession, or where the promisee had already made valuable improvements thereon. Other instances or circumstances could readily be suggested where compensation in money would be inadequate to redress a well-established breach of contract for an interest in land.
On the other hand, in suits for specific performance of contracts concerning land, this court has never intentionally ignored the pertinent question whether the breach of the contract sued on could be adequately redressed by a money judgment; and if so, and no constraining equities are involved, monetary damages and not specific performance is awarded. In the noted Schindler estate case, Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665, where the action was by claimants under an alleged oral contract for personal services to be rendered by .them to Mrs. Schindler, an elderly lady of Wichita, who had promised to execute a will leaving them all her considerable property (except some small bequests), this court reversed a judgment in claimants’ favor, saying, in part:
“It is clear from the evidence in this case that all of the services shown by plaintiffs to have been performed for Mrs. Schindler could be readily ascertained and compensated in money. There is no showing that the parties changed in any substantial degree their mode of living after the time it is alleged this purported contract was made. Mrs. Schindler continued to live in her home on Emporia avenue.....On one or two occasions Mr. Woltz, who was a carpenter by trade, did a little work about her premises, on the screens or made light repairs. Mrs. Woltz did some sewing for Mrs. Schindler. Whether plaintiffs were paid for these services is not specifically disclosed. They are comparatively trivial in any event. Sometimes when Mrs. Schindler visited the plaintiffs she stayed all night, or for a few days, as did others of plaintiffs’ friends who visited them. ... In 1921 she was ill, but was cared for at a hospital, . . . For three or four weeks before she was taken to the hospital the last time, she was ill at the home of plaintiffs and was cared for by them. Two doctors attended her during that time. Plaintiffs brought out from these physicians that a reasonable charge for the care given Mrs. Schindler by plaintiffs during that time was from $150 to $200 per month. Whether they were paid for that does not appear from the record, but if not, it was the only service of consequence shown by the evidence to have been performed by plaintiffs for Mrs. Schindler aside from the courtesies and civilities exchanged between neighbors and friends; so there would have been no serious difficulty in establishing the money value of services performed by plaintiffs. A proceeding to recover for such services should have been brought in the probate court. (R. S. 22-708.)
“It would be clearly inequitable, as against anyone who had a rightful claim to it, for the court to turn over to plaintiffs property of the reasonable value of $75,000, as found by the court, in payment of services which could be readily estimated in money and which actually amounted to only a few hundred dollars, and which plaintiffs, even when expressing exaggerated views in their petition, did not feel justified in claiming to exceed $15,000.
“Taken as a whole, the record clearly shows that the claim of plaintiffs for all of Mrs. Schindler’s property by reason of the alleged contract is not well founded and that it has no merits in equity.” (p. 261.)
In Renz v. Drury, 57 Kan. 84, 45 Pac. 71, where the action among other matters was for specific performance of a parol agreement to make a foster child an heir, in consideration of her personal services, a judgment of the district court in her favor was reversed by this court, where we said:
“The contract theory of this case, based upon services, comes within the reasoning in Baldwin v. Squier, 31 Kan. 283, where it is held that payment of the purchase price does not take such a contract out of the reach of the statute of frauds, because the money can be recovered back by action, and so no fraud will be accomplished if the parol contract is not enforced. In the present case, the value of the services of Virginia from the time that said contract was made until she married was easily ascertainable, and might have been recovered on a quantum meruit, . . (p. 89.)
The syllabus of the Baldwin case cited in the above case reads:
“Where A., the' owner and in possession of a tract of land, made a parol contract with B that if she would come and live with and take care of him till his death he would give her the land, and in pursuance of such contract she came, lived with and took care of him till his death; and where there was no contract in reference to making a will; and where it does not appear that there was any difficulty in estimating the value of B.’s services prior to A.’s death, the same taking place within a year and a half: Held, That there was no such part performance as took the case out of the scope of the statute of frauds.”
In Goddard v. Donaha, 42 Kan. 754, 22 Pac. 708, where a parol agreement had been made between a brother and sister that if the latter would pay the brother’s debt to a third person, she might have his interest in certain Marshall county lands. She accordingly paid the debt. No deeds or other memoranda were executed. In an action in partition between persons concerned in the property, it was held:
“A parol agreement to convey land and full payment of the purchase-price, will not alone operate to pass the title thereto where no possession of the land is taken under the agreement, and no memorandum thereof is in writing.” (Syl. ¶ 3.)
In the opinion it was said:
“Mrs. Goddard never had any written proof of her title until the deeds were made to her by the other heirs. To be sure, the full purchase-price had been paid, yet without taking possession of the land and making some valuable improvements upon it, or by doing some act which would have placed the purchaser in a position where she could not be restored to her original condition by the repayment of the money with interest, she' could not have enforced this contract in an action for specific performance.” (p. 757.)
In Engelbrecht v. Herrington, 103 Kan. 21, 24, 172 Pac. 715, it was said:
“The general rule is that every parol contract concerning lands is within the statute of frauds and perjuries and unenforceable except where the performance cannot be compensated in damage's. The fact that the consideration for the contract was to be paid in services, and not in money, makes no difference in the application of the rule. If the value of the plaintiff’s services may be determined and compensation made in money the case is not taken out of the statute. (Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591.)”
In Roberts v. Roberts, 130 Kan. 85, 92, 94, 285 Pac. 584, where specific performance or a declaration of trust was sought to give redress for a father’s breach of contract with his son that the latter should have certain lands of the father for certain stipulated personal services, judgment for the son against the father’s executrix was denied. In an opinion by Mr. Justice Jochems it was said:
“As pointed out by the appellee, the evidence does not show that the value of those services was incapable of being definitely ascertained. The decisions (and they are many) which uphold contracts of the nature last indicated, where they relate to real estate are based upon the proposition that the value of the services rendered cannot fairly be measured in money. Whenever the services are of a character that they can be measured in money and recovery had, equity will not enforce such a promise, [citations.]
“We have examined the cases decided by this court which compel specific performance where there is an oral agreement to give lands at death or by will in return for services rendered, and so far as we are able to ascertain these decisions are all founded upon the fact that services had been rendered which were of such character that the value thereof could not be readily ascertained or computed in money.” (pp. 92-94.)
In Dent v. Morton, 148 Kan. 97, 79 P. 2d 875, Mr. Justice Thiele carefully analyzed many of our decisions where specific performance had been granted or approved by this court and where it had been withheld under the rule of the early case of Baldwin v. Squier, supra, when there appeared to be no difficulty in estimating the value of the claimant's services in money.
In our most recent case of Dixon v. Fluker, 155 Kan. 399, 125 P. 2d 364, specific performance of an oral contract to convey or bequeath certain real estate was denied by the district court and its judgment was affirmed by this court. Two sections of the syllabus read :
“2. Ordinarily equity will not enforce an oral contract with decedent to convey or devise land in return for services rendered where the services are strictly of a business nature and can be compensated with money.
“3. In an action to compel specific performance of a contract with a decedent to convey or devise land the petition is examined, and it is held that the services described in the petition were of a nature which could be compensated with money.”
In the body of the opinion is an excerpt from an opinion by the supreme court of Idaho which may restrict the granting of relief by specific performance within narrower limits than this court has hitherto had occasion to consider or declare. Be that as it may, the decision itself was thoroughly sound, and the sections of the syllabus set out above are well-considered statements of pertinent law applicable to that case and to the case at bar.
We therefore conclude that the rule stated in the syllabus, paragraph 7, of our original opinion was too broadly stated, and that the true rule of this jurisdiction is the one which has been repeatedly announced, and never intentionally departed from since Baldwin v. Squier, supra, was decided sixty years ago.
Harvey and Parker, JJ., dissent.
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The opinion of the court was delivered by
Smith, J.:
This was an action on a fire insurance policy. The trial court overruled a motion of the plaintiff, Antone- Drewicki, (commonly known as Antone Price) for judgment on the pleadings and sustained his motion that the defendant be required to elect upon which one of the two defenses he relied. Both parties have appealed.
After the formal allegations, the petition alleged that the policy in question was a renewal of a former policy issued by the agent of the defendant; that plaintiff had asked his wife to secure this policy from defendant’s agent; that when it was first issued it was in the amount of $1,000 and in the name of plaintiffs wife and that he caused his wife to take the policy back to the agent and tell him to reduce the amount to $500 and insert his name instead of his wife’s name in it; that the agent did reduce the amount of the insurance but told the wife of plaintiff that the name would not make any difference. The petition then alleged that the plaintiff relied on these representations and that when this policy expired a renewal policy was taken out for the sole benefit of the plaintiff by the same method; that a new fire insurance policy was issued through the same agent, expiring on July 7, 1942, in the amount of $500 on the building in question and $800 on the contents; that it was in full force and effect on April 5, 1941. The petition then alleged that if the court should hold that the policy was in the name of plaintiff’s wife it should be reformed to carry out the real intent of the parties, that is, that the policy was issued to plaintiff for his sole benefit; that on the morning of April 5, 1941, while the policy was in effect the building and contents were destroyed by fire; that he had submitted proof of loss in the sum of $500 for the building and $800 for the contents; that the defendant refused to pay it. Judgment was prayed against the defendant in the sum of $1,300, with ■ interest.
An answer was filed to this petition denying the alleged conversation between the agent and Mrs. Price, alleging that the policy was issued in the name of Mrs. Price, that the fire was of incendiary origin; that she had been convicted of arson and that the policy was therefore void. A trial was had which resulted in the jury being discharged because it was unable to agree. At the request of the defendant insurance company Mrs. Price was made a party defendant subsequent to this trial and personal service was had upon her. A supplemental answer and counterclaim were then filed by the defendant. This is the answer at which the motions we are considering were directed. It admitted the formal allegations in the petition; then denied that the policy sued on was a renewal policy; denied that it ever had taken an application or issued a policy to the plaintiff or that it was ever represented to the defendant or its agent that anyone other than Mrs. Price had an insurable interest in the property. It further stated that about the 7th day of July, 1939, the agent of defendant had mailed to Mrs. Price a renewal of a policy issued by the agent to Mrs. Price in a fire insurance company other than defendant; that Mrs. Price had returned the policy to the agent and asked him to issue a new one increasing the amount of the insurance from $1,450 to $1,700; that the agent had written the policy upon which this action was brought to cover the property of Mrs. Price from the 7th of July, 1939, until the 7th of July, 1942, .and that at all times Mrs. Price had represented that she had an insurable interest in the property and it was issued solely to cover her insurable interest. The answer further alleged that neither the plaintiff nor Mrs. Price, his wife, had ever advised the defendant or its agent that the insurance was to cover anything other than her interest, but that on the 21st day of November, 1940, a building and loan company became the mortgagee in a mortgage on the land in question executed by plaintiff and his wife and that a representative of the loan company notified defendant’s agent of the mortgage and asked that a standard mortgage clause be attached to the policy, and that the agent of the company thereupon placed a mortgage endorsement on the property and accepted notice that the title of the property insured under the policy was in the name of plaintiff and that neither plaintiff nor his wife ever consulted this defendant or its agent or agreed to the endorsement. The answer alleged that the policy was issued to Mrs. Price for the sole purpose of insuring the insurable interest described in the policy and denied that the company ever had any contractual relationship with plaintiff; that the fire was of incendiary origin and plaintiff’s wife had been convicted of arson in the burning of the house and that this action was a fraud against the defendant and the policy was therefore void. The answer then alleged for a counterclaim against the plaintiff and the co-defendant, Mrs. Price, that the plaintiff and his wife had secured the mortgage from a building and loan company at Leavenworth, Kan., to secure their promissory note in the sum of $400; that the loan company had demanded of the defendant that it attach to the fire insurance policy a standard mortgage clause, a copy of which was attached to the answer, and that after the premises were destroyed by fire the loan association demanded of the defendant that it pay it under the standard mortgage clause the balance due on the mortgage of $402.83, which defendant was liable for, and in response to this demand the defendant had paid that amount to the loan company; that the loan company had duly executed articles of subrogation and assignment to defendant. The answer then alleged that by reason of the terms of the subrogation and assignment it became entitled to all of the rights of the loan company by virtue of the promissory note and mortgage. The answer further alleged that the plaintiff and his wife had failed to pay the interest on the note and taxes on the real estate for the years 1941 and 1942 and had failed to keep the premises insured and by reason of these things the promissory note was due. The answer prayed that the plaintiff take nothing by the action and that the defendant insurance company recover $402.83 from plaintiff, with interest, and that such sum be declared a first lien on the property in question and that it be sold to satisfy the lien.
The plaintiff first filed a demurrer to the counterclaim on the ground that it was not a cause of action that could properly be pleaded as a setoff or counterclaim to the cause of action set' out in plaintiff’s petition; that it did not state facts sufficient to constitute any defense to the plaintiff’s cause of action and that it was a separate and different cause of action founded upon another and different contract than that set out in plaintiff’s petition. This demurrer was overruled February 12, 1943. About the same time the plaintiff filed a motion for judgment on' the pleadings on the ground that the defendant in its answer and counterclaim had admitted that plaintiff was insured under the policy and had charged him with no fraud or other act voiding the policy; that when the defendant accepted notice that the title of the property insured stood in the name of plaintiff, by not canceling the policy it thereby waived the right to claim as a matter of law that the plaintiff was not insured. This motion was also overruled on the 19th day of February, 1943.
The plaintiff also filed a motion to require the defendant to elect upon which ground of defense contained in its supplemental answer it relied. The motion alleged that the inconsistencies were a denial by the defendant that the plaintiff was the insured in the policy, and the defense set out in the counterclaim that the defendant was subrogated and claimed the right to foreclose the note and mortgage against plaintiff because defendant had paid the amount of the note to the loan company. On the 17th of April, 1943, the trial court found that these defenses were inconsistent and sustained the motion and ordered the defendant to elect upon which of the defenses it would rely. The defendant appealed from this order on May 24, 1943. On June 11, 1943, the plaintiff attempted to file a cross-appeal from the order of February 19, 1943, overruling its motion for judgment on the pleading. We shall first deal with the defendant’s appeal. It will be noted that the position of the defendant company is, first, that the insured named in the policy had no insurable interest in the property and it actually had no contract with the plaintiff; and second, that because it paid the mortgage company after the property had been destroyed the amount of the loan it had made, with the property as security, it should have the right to foreclose the mortgage for its own benefit. The question is whether these two positions are inconsistent. Appellee argues that they are inconsistent under the rule announced in Pinegar v. Webster, 145 Kan. 44, 64 P. 2d 546. In that case two defenses to a mortgage foreclosure were pleaded. One was that the signatures on the note and mortgage were forgeries and the other was they were secured by fraud. That case is not in point here because clearly when the defendant in that action had proved that the signatures were forgeries, that is, that he had not signed the note and mortgage at all, he could not very well go ahead and prove that he had been induced by fraud to sign them. The proof of one prevented him from, being able to prove the other. The rule is stated in Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P. 2d 150. There this court held:
“To make actions inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other.” (Sybil5.)
We do not have that situation here. The defendant could prove its allegation as to the title of the property being in the plaintiff and this policy and all of its dealings being with his wife without offering any testimony that had the least bearing upon the liability of the insurance company to the mortgagee, as pleaded in the answer. The argument of plaintiff overlooks the real underlying reason for the relationship that existed between these parties. It is a very common relationship. Practically every mortgage company that loans money upon real estate requires that the buildings be insured. Everybody knows why that is. It would not do the mortgage company any good to have a mortgage upon a town lot which had been the site of a valuable building if when the time came to foreclose the mortgage the building had been consumed by fire. So the mortgage company requires that the buildings be adequately insured and that there be what is described as a loss payable clause attached to the policy, as there was in this case. This clause provided that the loss or damage, if any, under the policy should be payable to the loan company as its interest might appear and provided further that the insurance as to the interest of the mortgagee should not be invalidated by any act of the mortgagor or owner of the property or for any other of the several reasons which are enumerated. This is an ordinary provision in insurance policies as to the dealing between the mortgagors and insurance companies and mortgagees.
In Metropolitan Life Ins. Co. v. Mennonite Mutual Fire Ins. Co., 131 Kan. 628, 293 Pac. 402, we considered a case where the mortgagee brought an action to recover from an insurer after the building upon the real estate upon which it held a mortgage and which was insured by the insurer had been destroyed by fire. There were some circumstances which if true would have prevented the insurer from being liable to the insured. We held, however, as follows:
“Under the ‘union mortgage clause’ attached to the policy issued by the defendant in this case, which is set out in the opinion, it is held that the defendant insurance company is liable to the' plaintiff mortgagee notwithstanding the failure of the mortgagor to pay the premium on the policy and other acts of the mortgagor referred to in the opinion which rendered the policy void as to the mortgagor.” (Syl. (f 1.)
So in this case had the insurance company, the defendant here, refused to pay the mortgagee the amount of this mortgage the mortgagee could have brought an action and recovered on the policy. Instead of that the insurance company, defendant here, as was proper, recognized its liability to the mortgagee under the loss-payable clause and complied with its contract. Under the subrogation clause it had a right to bring an action to recover the amount that it was compelled to expend on account of the loss'. That is what this counterclaim is. It does not, however, depend on the validity of the policy as between the insurer and insured. If the rule were not as has been stated it might happen that the plaintiff could recover the full amount of the policy in an action against the insurer. The insurer would be compelled to pay the judgment and then would be relegated to another action against the insured to collect the amount that it had paid the mortgagee. This would only make for a multiplicity of suits and would give no one a right which he does not now have. This conclusion requires that the order of the trial court sustaining the motion of plaintiff that the defendant be required to elect upon which of the defenses it would rely was wrong and should be reversed.
This takes us to the cross-appeal, wherein the plaintiff seeks to appeal from the order of the .trial court overruling his motion for judgment on the pleadings. In this connection it should be noted that the plaintiff demurred to the counterclaim which was a part of the supplemental answer and this was overruled on February 12, 1943. This demurrer in terms was only directed at the counterclaim. It will be noted that the time within which to appeal from the order overruling the demurrer was past long before the plaintiff filed his cross-appeal. When the plaintiff filed his motion for judgment on the pleadings while that refers in terms to the answer as well as to the counterclaim, still the motion is directed solely at allegations of the counterclaim. Thus, it appears that the legal questions raised by the plaintiff in his motion for judgment on the pleadings were substantially the same as those raised in his demurrer to the counterclaim. In Gas Service Co. v. Consolidated Gas Utilities Corp., 150 Kan. 715, 96 P. 2d 608, this court said:
“Appeal may not be taken from an order overruling a motion for judgment on the pleadings where a demurrer which raised the same question of law had previously been overruled and no appeal therefrom had been perfected in time.” (Syl. Tf 2.)
See, also, Miller v. Sunflower Recreation Society, 151 Kan. 930, 101 P. 2d 891, and Sowers v. Wells, 152 Kan. 122, 102 P. 2d 980. Following the rule laid down in those cases, we hold that the order overruling the motion for judgment on the pleadings in this case was not an appealable order and as to it the appeal should be dismissed.
The judgment of the trial court sustaining the motion of the plaintiff that the defendant be required to elect is reversed; the appeal from the order denying the plaintiff’s motion for judgment on the pleadings is dismissed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to set aside a will on the ground of undue influence and mental incapacity. It was tried to the court. No separate findings of fact were requested or made. The court found generally that the instrument in question was the valid will of the testator and should remain in full force and effect as such, and rendered judgment accordingly. Plaintiff has appealed.
There was no evidence of undue influence as that term was defined and applied in Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, and allied cases; indeed, in this court appellant does not argue that there was undue influence.
On the question of the mental incapacity of the testator to make the will, there was some conflict in the evidence, but there is an abundance of substantial evidence to support the finding and judgment of the trial court. The record on this point presents no legal question to be determined by this court.
Appellant suggests that our statute (R. S. 22-214) relating to an action to contest a will, which provides, if it shall appear that the will was written or prepared by the sole or principal beneficiary who, at the time, was the confidential agent or legal adviser of the testator, or occupied any other position of confidence or trust, should not be held to be valid unless it is affirmatively shown that the testator had read or knew the contents of the will and had independent advice with reference thereto, as construed in Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087, should be applied here. But it is clear the facts will not warrant its application. No beneficiary wrote or prepared this will. The only beneficiary who knew it was being prepared, and had any part in its preparation, received less than one-fifth of the estate. More than that, it does not appear that this point was pressed in the court below.
The record discloses no reason for disturbing the judgment of the court below, and it is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was a foreclosure action brought by Jettie Russell against James E. and Nellie M. Ely, his wife. It resulted in a judgment that the mortgage and notes be reformed as to a date, and foreclosure was denied. ’ Plaintiff appeals.
The defendant, Ely, a dealer in réal estate, in December, 1928, entered into an option agreement with the plaintiff to purchase the mortgaged land. The agreement relating to the purchase was made by correspondence. The option proposed by plaintiff was accepted by the defendant, Ely, on December 19, 1928. It provided that defendant was to have a twelve months’ option to purchase the land at a price of $2,400, $100 being paid for the option at the time with the agreement that if a purchase was made the $100 was to be applied on the initial cash payment, which was fixed at $800. The cash payment was to be made when plaintiff furnished the customary papers showing good title in the land, the balance of $1,600 was to be payable in one-, two-, three- and four-year equal payments of $400 bearing interest, from the time the papers were exchanged, at six per cent. The deferred payments were to be secured by a first mortgage. On December 8, 1929, the defendant exercised his option by a written notice that he would take the land in accordance with the option agreement. Plaintiff at once prepared and sent by mail to defendant an abstract of title, but the letter with the accompanying abstract was never received by defendant. Later the attention of defendant was called by plaintiff to the fact that the abstract had been mailed to him, and urged that the transaction should be closed, and stating that a deed was prepared and ready for delivery. Defendant asked plaintiff for the date on which he sent the abstract, whether it was sent by special delivery or ordinary mail, and stating that he had made a search for it but found none. In another letter he informed plaintiff that he had been gone from home some time and stated that he would try to find the abstract which plaintiff said he had sent to him, and then added, “Sure I want the land.”
The abstract not having been found, defendant concluded to complete the transfer without an abstract and sent a check first for $500 and a few days later another check for $200. When the $500 payment was made, plaintiff on April 24, 1930, wrote to defendant calling attention to the fact there was $700 due on the initial payment and that interest would be due thereon up to the present date. At the same time he inclosed prepared notes and mortgage, covering the $1,600 balance, stating:
“This is due in four equal annual payments of $400 each with interest at six per cent. If you and your wife will kindly execute these notes and the mortgage, and send the same down to me, I will forward the deed to you at once. This deed has been on my desk for several months, ready for delivery. No doubt you will be able to locate the abstract in due course, and I feel quite certain you will find the title O. K.”
The closing of the transaction was thus delayed until May 7, 1930. Plaintiff insists that the abstract was mailed in January, but appellees are equally insistent that the abstract never came to nor was received by them. The note and mortgage which were prepared by plaintiff and forwarded by mail were executed by appellees and returned by mail to plaintiff. When plaintiff prepared the papers she dated them December 19, 1929, made the interest payable semiannually and inserted a provision that upon default of payment of interest the mortgagee might declare the whole amount due and foreclose it at once, and she also inserted a clause providing for ten per cent interest after default. Appellees noticed the provision for ten per cent and changed it to six per cent, but did not read the instruments through, and signed them believing they were drawn in accordance with the terms of their written contract, and returned them to plaintiff. When the first semiannual installment of interest became due the plaintiff declared the whole debt due, without notice to appellees, and began this action to foreclose the mortgage. The answer of appellees was that under the agreement the deferred payments of the purchase price were to bear interest from the date that the deed was executed and papers exchanged, that the deed was not received until the 7th day of May, 1930, and that the mortgage and notes should have been dated as of that time, but by mutual mistake or the design of plaintiff, the notes were dated December 19, 1929, and that the defendants were entitled to have the notes reformed to comply with the contract. As stated, the court reformed the instruments and denied the foreclosure.
There can be no dispute as to the terms of the contract, as it is in writing, signed by both parties. It provided that the cash payment was to be made when plaintiff delivered the deed and abstract showing title, and that a mortgage for the balance was to be executed in accordance with the terms of the contract payable in four equal installments with interest at six per cent from the time of exchanging papers. That was the time when interest was to begin to run. Because plaintiff prepared and sent an abstract at the expiration of the option in December, 1929, she claims interest from that time, and in the mortgage prepared by her she wrote into it that the interest was to run from that date. That provision was not in accordance with the plain terms of the contract, and it appears defendant signed it without noticing that it was contrary to the contract. The court found for the defendant, holding that it was a mistake, that reformation should be made and the plaintiff is not in a position to claim there was no mistake. It is contended that it was not a mutual mistake, but the fact that she claims she did not regard it as a mistake is not- controlling in this equitable action where the provision was repugnant to the written contract of the parties. Where there is mistake on one side and inequitable conduct on the other, the remedy of reformation is available. In such a situation it has been said:
“Moreover, no written instrument which fails to truly recite the bargain of the parties could ever be reformed for mutual mistake if the one who resists its reformation could defeat its correction by his mere self-serving avowal that there was no mistake on his part. While the evidence to justify a reformation of a written instrument on the ground of mutual mistake must be clear, decisive and convincing, yet it may be so proved, and usually has to be, without the evidence of the party who resists and seeks to profit by the alleged mutual mistake.” (Atkinson v. Darling, 107 Kan. 229, 231, 191 Pac. 486.)
See, also, Cox v. Beard, 75 Kan. 369, 89 Pac. 671; American Nat’l Bank v. Marshall, 122 Kan. 793, 253 Pac. 214.
Plaintiff does not deny that the questioned provision in the mortgage was in conflict with the provisions of the contract. The fact that there was delay in closing the transaction because of the loss of the abstract did not operate to change the terms of the agreement. The further fact that defendants did not carefully read the papers prepared and forwarded to them by plaintiff does not bar a reformation. (Zuspann v. Roy, 102 Kan. 188, 170 Pac. 387.)
We conclude that the court was warranted in adjudging a reformation in accordance with the contract of the parties.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in ejectment for the possession of a Phillips county farm to which the rival litigants laid claim through alleged rights conferred upon them by the record title holder, who was the mother of plaintiffs and grandmother of defendant.
The facts developed by the pleadings and evidence make a story of human interest to which we will give some space, although counsel for appellee intrudes a motion to dismiss the appeal, which may prevent a full review.
It appears that Herman Gebers and Isabell Gebers, his wife, were thrifty pioneers of Phillips county who accumulated a good deal of property. They had three daughters, Julia, Mary and Anna, all of whom grew to womanhood and married. Herman died testate in 1919, leaving a life interest in his property to Isabell with remainder to the three daughters. Isabell was a competent business woman, and she so successfully managed the life estate devised to her that her income exceeded her requirements. Isabell’s daughter Anna married a man named Reese, and the defendant Lottie Reese McCormack is the issue of that marriage. When Lottie grew to womanhood she married a Mr. McCormack apparently without her parents’ approval and they left her and her husband to make their way in the world without parental assistance. That situation aroused the interest of Lottie’s grandmother, Isabell Gebers, and the old lady took upon herself the task of putting the young couple on the road to prosperity.
Grandmother Gebers bought a good half section of land near Kirwin, poorly improved, and put Lottie and her husband upon it. She required them to pay the equivalent of the customary rent of the community, but devoted all the proceeds to the improvement of the property, and encouraged Lottie and her husband to improve it as their own. She repeatedly told them and the neighbors that the farm was Lottie’s. Indeed, before the old lady bought the farm, Lottie and Isabell had some correspondence in which Lottie had asked her grandmother to lease one of her farms. The grandmother declined, saying that she had a better plan than that; that she would buy a farm for Lottie with her own funds, and then the rest of the family would have nothing to say about it. When Isabell did purchase the farm, in 1922, she wrote to Lottie:
“I have bought you a place; it .is near Plato’s folks; it is four miles west and one and one-half miles north of Kirwin. The farm land lies pretty good; the pasture is rough, but that does not make much difference; the improvements are poor. I thought it would be better to get better land and less improvements, than nice improvements and poor, rough land, as you can improve the land and you cannot make much of a living off of poor land. I am giving you this place; you can improve it any way you want to. You will get possession next spring.”
When the old lady got ready to make her will she sought the services of one of her sons-in-law, P. J. Paulsen, and he so framed the will as to leave it open to the construction that this farm was devised to his own wife and her sister. The language of the will recites:
“Third: I give, devise and bequeath to my daughters, Julia Paulsen, of Concordia, Cloud county, Kansas, and Mary Pickel, of Speed, Phillips county, Iiansas, share and share alike, all of my real property located in the state of Kansas.”
Isabell died on December 29, 1928, and within due time after the probate of the will this lawsuit followed. The cause was tried before a jury which rendered a general verdict in favor of defendant, and answered certain special questions which read:
“1. Did the defendant or her husband enter upon the land in question as the tenant or tenants of Isabell Gebers? A. No.
“2. Did the defendant or her husband after entering upon the land in question become the tenant or tenants of Isabell Gebers? . . . A. No.
“3. If you answer question No. 1 or No. 2 ‘Yes,’ then state which was tenant. A.-.
“4. Did Isabell Gebers make a gift of the land in question to the defendant? . . .A. Yes.
“5. If you answer ‘Yes’ to question No. 4, then state whether the gift was made by letter or verbally or both. A. Both by letter and verbally.
“6. State fully the terms and conditions of such gift. A. Defendant was to live upon land and one-third of proceeds go for improvements.
“7. Did the defendant take possession of the land by virtue of said gift and hold the same during the lifetime of said Isabell Gebers? A. Yes.
“8. Did the defendant, relying on the gift, make valuable and lasting improvements on the land? A. Yes.
“9. If you answer ‘Yes’ to question No. 8, then state fully what the improvements were. A. Cistern, windmill, granary, bam, chicken house, brooder house, planting fruit trees.
“10. Did Isabell Gebers, after defendant or her husband entered upon the land, exercise any control over the land in question? A. No.
“11. Did Isabell Gebers, after defendant or her husband entered upon the land, exercise any ownership over the land in question? A. No.”
The verdict and special findings were returned on September 10, 1930, and on October 7, 1930, which was the court’s regular motion day, plaintiffs’ motion to set aside the special findings and motion for a new trial were considered and overruled, and the judgment roll then recites:
“It is therefore ordered, adjudged and decreed that the defendant recover the costs of this action taxed against the plaintiffs in the sum of $206.10.”
On December 12,1930, plaintiffs filed their notice of appeal. Defendant moved to dismiss for the reason that on November 20, 1930, one of the plaintiffs satisfied the judgment by payment of the costs in full, and that the sum thus paid ($191.10 — $15 having been deposited in advance) had been distributed by the clerk of the district court of Phillips county as required by law. This motion is supported by the affidavit of M. N. Mcllwain, clerk of the district court. He avers that—
“. . . On the 7th day of October, 1930, ... a judgment was rendered in said case in favor of the defendant and against the plaintiffs and each of them for costs, which amounted to and were taxed at $206.10.
“That a part of the $206.10 was for costs that were incurred for and made by the defendant; that no execution was ever issued upon said judgment, nor was a praecipe ever filed for an execution, and no stay of execution was re quested by either party plaintiff and no order for a stay of execution or to supersede said judgment in any manner was ever made.
“That on the 28th day of November, 1930, the judgment was satisfied by the plaintiffs paying into court the amount of said judgment in the sum of $206.10, for which a receipt was given, and that said sum has since been distributed and the proceeds receipted for and the judgment has been thus fully satisfied and paid.
“That on the 12th day of December, 1930, and after the amount of the judgment, to wit, $206.10, was distributed, notice of appeal was filed in this office and a certified copy of the journal entry of judgment, together with said notice of appeal, was forwarded to the clerk of the supreme court of the state of Kansas.”
To get out of this dilemma counsel predicate an argument on what they choose to characterize as the involuntary payment of the costs by one of the appellants. But the adjective “involuntary” does not fitly apply. There was no impending levy upon the property of Mary to satisfy the judgment, no execution had been issued, nor prsecipe for execution filed. It was simply a case where apparently a final judgment ought to be satisfied, and no record reason then existed why it should not be satisfied.
The industry of counsel for appellants has discovered some textbook doctrine, 2 R. C. L. 65, based on decisions from other jurisdictions which seem to hold that the payment of costs by a defeated litigant does not waive or lose his right of appeal, that even the voluntary payment thereof either before or after taking such appeal is sometimes regarded as no bar to an appellate review. The rule in this jurisdiction, which we think is decidedly more logical, is clearly to the contrary. Indeed, the author of 2 R. C. L. 65 takes note of the fact that the Kansas rule is otherwise and our case of State v. Conkling, 54 Kan. 108, 37 Pac. 992, is cited for the footnote. That was a quasi-criminal case, but our rule makes no distinction between criminal and civil cases. Time and again it has been held that anything that savors of acquiescence in a judgment cuts off the right of appellate review, and payment of costs by a defeated litigant falls in that category. In Bank v. Bracey, 112 Kan. 617, 212 Pac. 675, our principal earlier cases were reviewed. The syllabus concisely states the whole case as well as the ruling:
“The action was one to recover on a promissory note. The defense was, the note had been procured by false representations, and the plaintiff was not an innocent holder. The defendant prevailed, and judgment was rendered against the plaintiff for costs. The plaintiff appealed, and afterwards paid the costs. Held, the appeal must be dismissed.” (Syl.)
See, also, State v. Massa, 90 Kan. 129, 132 Pac. 1182.
Counsel suggest that some different rule might be developed where one of two defeated plaintiffs was only a nominal party and she paid the judgment for costs while her fellow litigant was determined to appeal. We cannot assent to the idea that either of these plaintiff litigants was only a nominal party. For aught that appears the one who paid the costs was as much concerned in the litigation as the other. If indeed the plaintiffs were not in accord as to the policy of the litigation the one who is now said to have had all the responsibility of it might have made the other a defendant rather than to have made common cause with her as plaintiff in the action. Moreover, it is so very easy in this state to procure a stay of execution, supersedeas, or the like, which would halt an execution for costs, that we are constrained to believe that in those jurisdictions which hold that satisfaction of a judgment for costs does not constitute such an acquiescence in the judgment as to preclude an appeal the facility with which a stay of execution can be obtained in this state does not exist.
The motion to dismiss must therefore be sustained, but the court has not deprived itself of a perusal of the record on that account, and the impression we have thus gathered gives us no misgiving that justice may have miscarried. Indeed, what was said in Fox v. Eaglin, 132 Kan. 395, 295 Pac. 662, may aptly be repeated here:
“This was quite a proper lawsuit to be tried in the district court — to be tried there with might and main; but when it was tried and determined in that tribunal, so well equipped to ascertain the truth of disputed issues of fact, the case presented nothing to justify the expense of an appeal.”
Dismissed.
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The opinion of the court was delivered by
Smith, J.:
The action was to enjoin the enforcement of an ordinance of a city. The plaintiff alleged that it deprived him of the equal protection of the law in violation of the fourteenth amendment to the constitution of the United States, and was an abuse of the power to tax in contravention of article 12, section 5 of the constitution of Kansas. Judgment was for plaintiff. Defendant appeals.
Plaintiff, an honorably discharged veteran of the world war, owns and operates a bakery in Iola. He worked up quite a trade with various merchants in Humboldt. Various products are manufactured at the bakery of plaintiff at Iola. He then delivers them by means of trucks to different merchants in Humboldt and neighboring towns who desire to sell his products. The city of Humboldt passed an ordinance as follows:
“Section 1. That for the purpose of raising revenue the business of selling and delivering bread and bakery products within the city of Humboldt, Kansas, is classified and license taxes required as hereinafter set forth.
“Sec. 2. That it shall be unlawful for any person, firm or corporation, either as principal, agent or employee, to sell or deliver any bread or bakery products within the city of Humboldt, Kansas, without first paying to said city the license tax therefor as herein levied and provided.
“Sec. 3. The license tax herein provided for and levied shall be paid to the city clerk, who shall issue a license therefor, and the classifications and license taxes shall be as provided for in the following sections:
“Sec. 4. For each person, firm or corporation owning or operating a bakery within said city from which bread and bakery products are sold at retail or wholesale, the sum of $1 per day, $10 per annum.
“Sec. 5. For each person, firm or corporation not owning or operating a bakery within said city, and selling, delivering or gathering up bread or bakery products within said city, and having no bona fide established place of business within said city, the sum of $1.50 per day, $120 per annum.
“Sec. 6. Any person, firm, company or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than $10 nor more than $25, the costs of the case, and the original cost of the license.”
The city marshals threatened to arrest plaintiff unless he complied with the above ordinance. Appellee applied for a license to the city clerk and demanded' that it be issued to him free of charge under the provisions of R. S. 73-207 on account of his being an honorably discharged veteran of the world war. This was refused.
He brought suit against the city officers of Humboldt, alleging facts about as set out herein, and praying for an injunction.
The city officers answered, setting up that appellee did not personally operate a delivery truck owned exclusively by himself, and hence was not entitled to a license without charge, as he claimed. The tax situation of the city was also set out in the answer. The city for several years past had been levying the limit, and had been running behind a little each year.
After the filing of this answer appellee filed a motion for judg ment on the pleadings. The court allowed the motion and granted the injunction. The following findings were made:
“1st. That the plaintiff is an honorably discharged soldier of the world war, and as such is entitled to all the rights, benefits and immunities granted to all honorably discharged soldiers by section 73-207, General Statutes, and that as such honorably discharged soldier, he is not required to pay license tax to sell, vend or deliver the products of his own effort in the city of Humboldt, Kansas, and is exempt from the provisions of any ordinance creating a license tax therefor.
“2d. The court further finds that ordinance No. 658 of the city of Humboldt, Kansas, is illegal, unlawful and void and in restraint of the free and unmolested trade of the citizens of the state of Kansas, and in violation of the constitution of the state of Kansas and of the United States.”
Appellant urges that the ordinance is not unconstitutional because it does not make the increased license tax dependent on the residence or nonresidence of those seeking licenses, but upon the question of whether he owns and operates a bakery in the city. The city also urges that appellee is not entitled to a license free of charge under the terms of R. S. 73-207 because he is not engaged in operating personally a delivery and baggage wagon owned exclusively by himself, and had not been a resident of the city for six months previous to the time of application.
R. S. 73-207 is as follows:
“That from and after the passage of this act . . . all ex-soldiers . . . of the world war, . . . and who shall reside within the city or county six months previous to the time of which said license is issued, shall be entitled to a license to operate a delivery and baggage wagon and to vend, hawk and peddle goods, wares, fruits or merchandise not prohibited by law in any county or city in this state: Provided, That said soldier or sailor is engaged in operating personally a delivery and baggage wagon, owned exclusively by himself. Upon the presentation of his certificate and papers of discharge to the clerk of any city or county in this state, and showing proof of his identity as the person named in his certificate of honorable discharge, and having resided within the city or county from which the license is issued six months previous to the time of issuance of said license, said clerk shall issue to said ex-soldier ... a license . . .”
We have reached the conclusion that the immunity provided for in the above statute is a personal one. Clearly that is what the language used would indicate. The act refers to the personal operation and ownership of a baggage and delivery wagon owned exclusively by the veteran. The legislature did not intend that one veteran could hire a number of men to operate bread wagons for him and escape the necessity for paying for a license on the ground that he was a veteran of the world, war. This case was decided on the pleadings. The answer alleged that appellee was operating the bread trucks in Humboldt by means of agents and employees. Hence he cannot take advantage of the statute.
The question of whether the ordinance is unconstitutional has been settled by this court in the case of In re Irish, 122 Kan. 33, 250 Pac. 1056. In that case the court held that an ordinance which provided for a license of $150 per year for anyone who sold bakery products and was not a resident of the city and did not provide for any license for a resident was invalid as being in violation of the fourteenth amendment to the constitution of the United States.
In the ordinance we are now considering those selling bakery products are classified as those owning and operating a fixed place of business in Humboldt and those not owning such a fixed place of business. Appellant argues that this is a reasonable classification and does not come under the rule in the Irish case. We are not impressed with this distinction. This court takes judicial notice of the local situation at Iola and Humboldt and the general business and economic conditions there. The ordinance that provides for a higher license for one selling bread without a fixed place of business in Humboldt than for one who has a fixed place of business really means that a nonresident of Humboldt shall pay the higher rate. This being the case, all that was said in In re Irish, supra, could be said in this case.
The judgment of the lower court that appellee was entitled to a license free of charge under R. S. 73-207 is reversed, while the judgment that the ordinance violates the fourteenth amendment to the constitution of the United States is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for conversion of twelve shares of telephone stock to which plaintiff laid claim of ownership by virtue of an alleged gift inter vivos from her aunt, in whose name the stock had been issued by the defendant company.
The circumstances were as follows: The late Elizabeth Schindler, of Saline county, and her husband, Henry Schindler, were married in 1898. They had no children. She was a business woman, and through her labors in operating a boarding house she accumulated some property. According to plaintiff’s evidence the husband was rather lacking in enterprise and inclined to let his wife earn the living. He had the habit of coming to her for money, and was somewhat disposed to pay attention to other women. The plaintiff, Carrie Schultz, was the niece of Elizabeth, being a daughter of Elizabeth’s brother. Plaintiff’s mother had been an invalid for years, which fact limited plaintiff’s opportunities considerably, and this situation incited the solicitude of her aunt, Mrs. Schindler. In 1926 Mrs. Schindler was the owner of twelve shares of stock in the defendant telephone company. One Sunday in the spring of that year Mrs. Schindler, who lived in Salina, came to the Schultz farm home, about four miles from the city. She carried with her that telephone stock. She departed that evening without it. It was then in the possession of Carrie. Elizabeth had not theretofore put any of her property in Carrie’s keeping. She did not ask. Carrie to hold the stock for her, nor did Carrie steal it. Next day Carrie took the stock to Salina and put it in a safety deposit box, where it remained under her control until after her aunt’s death intestate on April 2, 1928. Two weeks later plaintiff, through her attorney, notified the defendant telephone company of her claim of ownership of the stock, as follows:
“United Telephone Company, Abilene, Kan.: April 16, 1928.
“Gentlemen — This is to advise that your certificates of preferred stock No. 6370 and 7208 issued to Mrs. Elizabeth Schindler are owned by Miss Schultz, living near Salina, and any future dividends on this stock will be payable to her. Yours truly, Z. C. Millie:in.”
The defendant company acknowledged receipt of this letter two days later, April 18, 1928, stating, among other matters, that before dividends could be issued to Miss Schultz it would be necessary that the certificates be indorsed by Mrs. Schindler, and that they be mailed to the company for transfer. Defendant’s letter concluded with an assurance of its earnest cooperation in the matter.
However, on April 30, 1928, Henry Schindler, surviving husband and sole heir of Elizabeth, was appointed administrator and without taking oath or giving bond, he procured a summary order of the probate court directing him as administrator to cause the telephone stock to be transferred to himself individually. At its beginning this order recites that the proceeding was had on April 30, 1928, but at its conclusion it recites:
“Done in the probate court aforesaid this 12th day of April, 1928.
“Will F. Miller, Probate Judge.”
On April 30, 1928, Henry Schindler made an affidavit in which he averred that the only personal property of the late Elizabeth that had come into his possession as administrator was the twelve shares of telephone stock, but that he had made a thorough search and was unable to locate the certificates, and that to the best of his belief they were lost. On May 5, 1928, defendant issued new certificates of stock to Henry Schindler, thus canceling the ones held by plaintiff. The following day, May 6, 1928, Schindler sold the newly issued stock to Fred H. Quincy for $1,200.
Some time later correspondence between plaintiff’s .attorney and the defendant company concerning plaintiff’s claim of ownership of the Elizabeth Schindler stock was renewed; but although plaintiff offered to put up a bond to protect defendant, the latter could not then recognize-plaintiff’s rights in the stock, since it had reissued it to Henry Schindler and had recognized the rights of Quincy as latest transferee.
Hence this lawsuit for conversion of the stock.
Defendant’s demurrer to the petition was overruled, and it then answered pleading the facts. Plaintiff’s reply alleged that she had not been apprised of the probate court proceedings and that they were had without notice, and that the probate court had no jurisdiction to determine between herself and Henry Schindler the ownership of the stock. She further alleged that prior to the order of the probate court defendant had notice of plaintiff’s ownership of the stock.
The cause was tried before a'jury. On the assumption that the gift of the stock, if there was such a gift, was a transaction between plaintiff and her deceased aunt, and that her capacity to testify to the facts was therefore much restricted, plaintiff was not permitted to testify to the ultimate fact of the gift; and the competency of what testimony she did give is stoutly challenged in this appeal. Plaintiff’s father testified that about a year after the stock had come into plaintiff’s possession he had a conversation with his sister Elizabeth in which she asked him if he knew where Carrie kept that telephone stock that she (Elizabeth) had given her, and he had replied that it was in a safety deposit box in the Farmers National Bank in Salina. Elizabeth said that was a good place for it, and .that she was to draw the dividends herself as long as she lived; but she added that the stock might do the Schultz family “some good some day.”
There was testimony in behalf of defendant that plaintiff had not been quite frank with Henry Schindler when he was inquiring about the whereabouts of the stock shortly after Mrs. Schindler’s death. Plaintiff’s reticence' on that matter was accounted for in part by her youth and inexperience, and also because her aunt had told her not to tell Mr. Schindler “because they had family difficulties and that would be worse.” Instead Carrie placed the stock in her attorney’s hands and he promptly notified defendant, as set forth above.
The jury returned a verdict for plaintiff for $1,200 as the value of the stock, and answered many special questions consistently with the verdict. Some of these read:
“1. Q. Did Elizabeth Schindler in the year 1926 deliver the twelve shares of telephone stock mentioned in the petition to the plaintiff, Carrie Schultz? A. Yes.
“3. Q. Had the shares of stock mentioned in the petition been in the plaintiff’s possession and under her control from the summer of 1926? A. Yes.
“5. Q. Did the plaintiff, after the death of Elizabeth Schindler and on or about April 16, 1928, cause her attorney to notify the defendant by letter that she claimed to be the owner of the shares of stock mentioned in the petition? A. Yes.
“6. Q. Did the defendant on May 6, 1928, without the consent or knowledge of the plaintiff, transfer said shares of stock to Henry Schindler? A. Yes.
“9.Q. Did Mrs. Schindler intend to make a gift of her stock, evidenced by certificates numbered 6370 and 7208, to the plaintiff? A. Yes.
“10. Q. If you answer the last question, was the gift to take effect after the death of Mrs. Schindler? A. No. Gift was made in 1926; Mrs. Schindler reserving the dividends until death.
“21. Q. Did the statements, acts and conduct of the plaintiff, directly or indirectly, induce and cause the defendant company to issue new certificate of stock in lieu of certificates numbered 6370 and 7208? A. No.”
Judgment was entered accordingly, and defendant assigns various errors which will be considered in the order in which they appear in its brief.
The first contention is that there was no competent evidence to prove the gift of the stock. The main features of that evidence were as summarized above — the Sunday visit of Elizabeth to the Schultz home in 1926, at which time she carried the stock with her; Eliza beth’s departure that evening without the stock; the niece’s resultant possession of it for the next two years; Elizabeth’s conversation with her brother a year later when she inquired as to the whereabouts of the stock which she had given to Carrie; and Carrie’s testimony that theretofore she had never taken into her custody any property for her aunt, that she was not asked to do so in that instance, and that she did not steal the stock.
Part of plaintiff’s testimony reads:
“Q. Where was this envelope, marked plaintiff’s exhibit one, the first time you saw it? A. It was in my aunt’s hands at my home.
“Q. Was there anything inside of it at that time? A. Two stock certificates, one for $1,100 and one for $100, from the United Telephone Company.
“Q. I show you stock certificates marked plaintiff’s exhibit two and three, and I will ask you to state if they were the certificates that you say were in the envelope when you first saw it in your aunt’s hands? A. They are.
“Q. Where were these certificates when your aunt left your home? They were in my possession. In my cedar chest.
“Q. Who put them in your cedar chest? A. I did.
“Q. And where was it? A. In my home in my bedroom.
“Q. Where was your aunt when you put them in the cedar chest? A. She was there.
“Q. Where? A. In the same room with me. She saw me put them in there.
“Q. Did you put the certificates in your cedar chest within her sight? A. Yes, I did.
“Q. You say you put them in the cedar chest while she was there; how long did they remain in your cedar chest? A. Over night. The next day my father and I took them to the Farmers National Bank and put them in the safety deposit box.”
Other evidential incidents of some probative value were the aunt’s and niece’s attachment toward each other; the aunt’s concern for the niece because the latter had been tied down at home during her girlhood for eight years caring for an invalid mother; the evidence that Elizabeth’s husband was somewhat indolent and inclined to sponge on his wife and waste his time on other women, and that Elizabeth was going to leave him in comparatively easy circumstances anyway. When the telephone stock was left with Carrie in 1926 the aunt believed herself to be afflicted by incipient cancer. On her deathbed she told her husband where he could find her diamond ring, but said nothing to him about the whereabouts of the telephone stock, which was some indication that she had already parted with it.
The competency of much of the evidence outlined above is vigorously denied, and the pertinent statute as well as cases from our own reports are pressed upon our attention to demonstrate its inadmissibility. The statute, in part, reads:
“No person, shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, where either party to the action claims to have acquired title, directly or indirectly, from such deceased person, or when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner, or assignee of such deceased person, . . .” (R. S. 60-2804.)
Does this statute disqualify a litigant in every sort of case from giving parol evidence of his acquisition of title to a chattel by a gift inter vivos from a person since deceased? If a father should give his son a watch, a gun, or an automobile, and some wrongdoer who was a stranger to the father’s estate should deprive him of the gift after the father’s death, must the son lose his action for conversion of the chattel because he has no other evidence to prove his title than his own testimony, which in turn is rendered inadmissible under the statute? . That, in our opinion, is not the purpose of the statute at all. This statute is only concerned with the situation which arises when one of the litigants has to make proof of a trans-ad ion between himself and a deceased person in a lawsuit where the subject matter of the transaction is in issue and where the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person. If the statute had been designed to favor strangers to the estate, what purpose was to be subserved by specifying the particular classes of adverse litigants against whom no testimony in respect to transactions with the deceased could be given? If such was the ligislative intent it would have been much clearer as’ well as more certain if the statute had said that in all cases whatsoever and between all litigants whomsoever no testimony of any party to a transaction shall be received in evidence concerning it where the other party to the transaction has since died.
An examination of the Kansas cases cited by appellant reveals that in every instance where the testimony of the witness was excluded under this statutory disqualification thé adverse party was one of the specified classes against whom the testimony was offered. Thus in Wills v. Wood, 28 Kan. 400, the rejected testimony had been offered in an action against the administratrix and heirs of David E. James. In Clifton v. Meuser, 79 Kan. 655, 100 Pac. 645, the adverse party protected by the statute was the executor of the deceased person with whom the plaintiff had the transaction. In Plowman v. Nicholson, 81 Kan. 210, 105 Pac. 692, the adverse parties were heirs of deceased persons with whom the transactions were had and about which the litigation was concerned. In Bryan v. Palmer, 83 Kan. 298, 111 Pac. 443, the proffered testimony was given in an action where the administrator of the deceased person was the adverse party. In Klein v. Blackshire, 113 Kan. 539, 215 Pac. 315, the litigation was between heirs at law of the deceased — one his widow, the other his daughter. In Beebee v. Peterson, 130 Kan. 14, 285 Pac. 616, the action was by the administrator of the estate of Andrew Beebee against his sister and coheir for an accounting and recovery of property which defendant claimed as a gift causa mortis from the deceased intestate.
We have not limited our examination of the Kansas cases to those cited by appellant; but a painstaking search of our reports reveals no case where the statute was effectively invoked to bar a litigant from testifying .to a transaction with a deceased person where the adverse party was neither an executor, administrator, heir at law, next of kin, surviving partner, nor assignee of such deceased person. On the contrary, in Reville v. Dubach, 60 Kan. 572, 57 Pac. 522, it was expressly ruled that a party to an action may testify in respect to transactions or communications had by him with a deceased person, where the adverse party was not the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person.
See, also, Stewart v. Falkenberg, 82 Kan. 576, 109 Pac. 170; Savage v. Modern Woodmen, 84 Kan. 63, 113 Pac. 802; Sarbach v. Sarbach, 86 Kan. 894, 122 Pac. 1052; Kansas City Life Ins. Co. v. Wilkinson, 125 Kan. 305, 307, 264 Pac. 37; Beeler v. Motter, 33 Fed. (2d) 788; Haffner v. Van Blarcom, 84 Colo. 565; 28 R. C. L. 495 et seq.; 40 Cyc. 2301 et seq.
The section of the code which we have been considering (G. S. 1868, ch. 80, § 322) was the subject of legislative revision in Laws of 1909, ch. 182, § 320, and Laws of 1911, ch. 229, § 1, but obviously the point of present concern was not affected thereby.
Touching the sufficiency of the evidence summarized as above, while appellant is quite correct in its contention that plaintiff’s possession of the stock was not sufficient in itself to prove plaintiff’s ownership of it nor the gift of it from her aunt (Beebee v. Peterson, 130 Kan. 14, 285 Pac. 616) yet the fact of its possession for two years is a probative fact (O’Keefe v. National Bank, 49 Kan. 347, 30 Pac. 473) the evidential potency of which depends upon the attendant circumstances. Even in cases which fall strictly within the bar of the statute (Civ. Code, § 320, R. S. 60-2804) it has been held that where the civil code forbids parol evidence of transactions with deceased persons proof of such transactions need not fail, but may be established by circumstantial or other competent evidence. (Davis v. Sim, 100 Kan. 66, 163 Pac. 622.)
Appellant directs our attention to Nash v. Harrington, 110 Kan. 636, 205 Pac. 354; Rayl v. Central Trust Co., 127 Kan. 131, 272 Pac. 147; and Countryman v. Merwin, 129 Kan. 317, 282 Pac. 724. We have not the slightest disposition to minimize anything said in those cases, but they were cases involving land where the transfer of title ought to be in writing and where only the flimsiest of parol evidence was adduced to establish title by gift in the face of the statute of frauds. We do not have that precise problem to deal with in the gift of a chattel.
The court holds that the evidence inherent in the circumstances, together with plaintiff’s testimony and the corroborating testimony of her father in which he narrated the conversation he had with his sister a year after the stock came into his daughter’s possession, satisfied the rule applied in Ariett v. Osage County Bank, 120 Kan. 286, 242 Pac. 1018, and cases there cited, which declares that a gift inter vivos must be proved by clear and convincing evidence, since the general verdict and special findings make it apparent that the jury and the trial court gave that evidence their unqualified credence. (Bryant v. Bartelli, 118 Kan. 75, 233 Pac. 1035; Nestlerode v. Commercial Nat’l Bank, 121 Kan. 399, 401, 402, 247 Pac. 866.)
Other matters urged in appellant’s brief have been duly noted but require little discussion. Defendant pleaded an estoppel, but that issue was not developed by evidence which would require the court to deal with it in the instructions. The stock certificates contained a recital that it was transferable only upon the surrender of the certificates properly indorsed. Defendant had timely notification of plaintiff’s claim of ownership shortly after Mrs. Schindler’s death, but despite that notification and despite its assurance of earnest co operation with plaintiff’s attorney in the matter of getting the record title to the stock transferred to plaintiff on the books of the company, within two weeks thereafter it made common cause with Henry Schindler to render nugatory plaintiff’s claim of ownership, and did so, moreover, without letting her know what was going on to her disadvantage. We are not asked to rule upon the point whether a gift of unindorsed corporate stock is valid, but see Plumb v. Bank of Enterprise, 48 Kan. 484, 29 Pac. 699, 28 C. J. 658, nor on the question whether a corporation is liable where it makes a transfer of stock without surrender of the outstanding certificates.
The record contains no error, and the judgment is affirmed.
Burch, J., not sitting.
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The opinion of the court was delivered by
Hutchison, J.:
This appeal is from an order of the district court of Wallace county denying the motion and application of Susan H. Seaverns, an incompetent, and her sister as her next friend, to remove the guardian appointed by the probate court and quash the guardianship proceedings in which Mrs. Seaverns had been adjudged an incompetent. The motion and application was made in a proceeding pending in the district court on appeal from the probate court, where an application had been made by the sister of the incompetent to set aside the guardianship proceedings because they were void and because Mrs. Seaverns had been restored to her right mind.
In July, 1929, Mrs. Seaverns was a widow, seventy-one years of age, living alone on her farm in Wallace county, which consisted of 2,800 acres, and was receiving a pension from the government of $30 a month. Proceedings were instituted in the probate court of Wallace county by the sister of Mrs. Seaverns, who lived in Portland, Ore., to have her adjudged incompetent. She was so adjudged in July, 1929, and her sister was appointed her guardian and took her to her own home in Portland, Ore., and declined and refused to return her upon the order of the probate court. Three months after this appointment the probate court removed the sister as guardian and appointed James E. Taylor as guardian, who qualified in October, 1929, and has been such guardian since that time. An appeal was attempted from this order of removal of the sister and the appointment of Mr. Taylor, but not perfected, and in March, 1930, the sister commenced this proceeding in the probate court of Wallace county, as above stated, to set aside the guardianship proceedings because they were void, and because Mrs. Seaverns had been fully restored to her right mind.
Mr. Taylor, the guardian, employed counsel to attend the taking of depositions in Portland, Ore., where many witnesses were examined as to the state and condition of the mind of Mrs. Seaverns, and the whole matter was tried in probate court to a jury, and a verdict was rendered on August 30, 1930, finding she had not been restored to her right mind and that her guardian should not be discharged. This verdict was approved by the probate court, and the sister appealed to the district court from this verdict and decision.
Instead of proceeding in the district court with a retrial of the whole matter, on appeal the matter came on for hearing on part of the issues only, as raised by the motion and application of Mrs. Seaverns and her sister to remove the guardian and quash the guardianship proceedings because they were void, leaving entirely out of the hearing on this motion and application the question of her being restored to her right mind, which was a part of the case appealed. After the ruling on the motion involving the validity of the adjudication of incompetency the appeal to this court was taken on that feature only, without proceeding to hear and determine the question of her having been restored to her right mind. Under the ruling of the trial court upholding the validity of the adjudication of incompetency she in her own right, and her sister in her behalf, then had and still have the right to a trial in the district court of the question of having been restored to her right mind.
Upon the adverse ruling on the question of the validity of the adjudication of incompetency in the probate court the appellants urge many reasons why the ruling is erroneous and the adjudication wholly void. It is not contended that the adjudication could be attacked at this time and in this manner if it were only voidable, but the contention is that it is absolutely void.
The first and strongest point pressed by the appellants is want of notice required by statute, which is jurisdictional. The probate record states that “due notice has been served,” but the same record shows it was read to Mrs. Seaverns by the probate judge in open court on the day on which the trial was had instead of being five days before the trial. Generally speaking, the purpose of notice is to afford an opportunity to appear at the hearing, and it has in a measure served its purpose when the party served is personally present, and this principle was applied to proceedings of this kind in the matter of In re Wellman, Petitioner, 3 Kan. App. 100, 45 Pac. 726. But authorities are plentiful to the effect that opportunity and actual presence do not constitute a waiver in cases of -this kind because of the alleged mental inability of the party to properly care for her own rights and interests. We are not ready to say, if this case is governed by the statute requiring the five-day notice, that the failure to give the notice five days in advance of the hearing was not a jurisdictional matter.
There are two different chapters under which guardianship proceedings can be had for incompetents or persons of that general class, chapters 39 and 76 of the Revised Statutes of 1923. The five-day notice is not a specific requirement under the latter chapter. R. S. 76-1203 and succeeding sections of that article prescribe the course of procedure and define the term “insane,” and section 1215 particularly refers to the appointment of a guardian. This act defines the word “insane” as follows:
. . any person whose mind, by reason of brain sickness, has become unsound, rendering such person incapable of managing or caring for his own estate or rendering him dangerous to himself or others, or who is in such condition of mind or body as to be a fit subject for care and treatment in a hospital for brain disease or insanity.” (It. S. 76-1203.)
The act was passed in 1901, being chapter 353 of the session laws of that year.
R. S. 39-201 and succeeding sections were passed in 1907, and although enacted later by six years did not eliminate or repeal expressly or impliedly any of the provisions of chapter 353 of the Laws of 1901, as is definitely stated in R. S. 39-235, or section 35 of chapter 247, Laws of 1907, which is as follows:
“Nothing in this act contained shall be held to repeal, alter or affect the provisions of chapter 353 of the Session Laws of 1901, providing for inquest in lunacy in certain cases, and as to such cases, and the commitment of insane persons to the state hospitals, that act shall govern. All guardians appointed under section 62 of said chapter 353 of the Session Laws of 1901 shall have and exercise the same rights, powers and duties as guardians appointed under this act.”
Section 62 of chapter 353, Session Laws of 1901, is the guardian section above mentioned as R. S. 76-1215.
The first section of this act outlines the class of persons to whom the act is to apply in the following language:
“When information in writing, verified by affidavit, shall be given to the probate court that anyone in its county is insane, a lunatic, an idiot, an imbecile, a distracted person, a feeble-minded person, a drug habitue, or an habitual drunkard, and for any of these reasons is incapable of managing his affairs, and that it is necessary that a guardian be appointed for his person or estate, or both, and praying that an inquiry therein be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury.” (R. S. 39-201.)
Appellants cite Martin v. Stewart, 67 Kan. 424, 73 Pac. 107, and Caple v. Drew, 70 Kan. 136, 78 Pac. 427, which show that the appointment of a guardian without a particular and specific finding of the court and jury as to the mental condition of the alleged incompetent person is without authority because the statutes definitely apply only to certain named mental conditions as a basis for such appointment. The findings in both of these cases were un der a law that has since been repealed. Both cases refer to the law of 1901, then in existence, but reasons are pointed out why the matter could not have been considered as being heard under that law, which reasons do not fully apply in this case — one of the reasons being the necessity of a jury trial under one act and not under the other. Appellant relies upon the ruling in the latter case because it holds that the act of 1901 has reference only to insane persons, and the finding of the court and jury in that case was only that the person was “feeble in mind, incapable of managing business affairs” and so classes the finding in the present case.
The finding in the case at bar was not by a jury, but by a commission, which was in harmony with the provisions of R. S. 76-1207 and 76-1208, and the probate court made the finding and order, which was authorized by R. S. 76-1214. The finding of the probate court was “illness of insanity,” which is within the limits insisted upon by the appellant. It is true the commission in its general finding did not use the term “insanity,” but in addition to the term incompetent it answered a number of questions as to her history and condition and stated “that the cause is supposed to be mental disease' — senile dementia.” From these answers and statements in the certificate of the commission the court’s finding and order as above stated was made.
The Caple case, supra, was decided before the enactment of the law of 1907, which recognizes in R. S. 39-235 the appointment of a guardian under chapter 76, and the Caple case in another respect fails to assist us in this case very much because it was there conceded that the appointment of a guardian could not have been warranted under the facts of that case under the act of 1901. (p. 139.)
It can, with equal propriety, be said in this case that the evident intention of the court and parties interested in this matter was to conduct it as a proceeding under chapter 39, but the legal proposition is if it lacks something essential under the procedure of this chapter, especially something jurisdictional which is not exacted under another chapter covering the same or similar purpose, may it not be held to be a valid proceeding under the provisions of the latter chapter? If there is doubt as to the jurisdiction of a court of general jurisdiction with reference to a judgment rendered by it, the presumption is always in favor of its jurisdiction (Bank v. Security Co., 65 Kan. 642, 70 Pac. 646), and the same rule extends to the judgments of the probate court (Watkins v. Mullen, 62 Kan. 1, 61 Pac. 385). In a recent case, Beeler v. Beezley, 126 Kan. 268, 267 Pac. 1112, it was said:
"There are two methods of dealing with the insane. One has for its purpose guardianship of person or property, or both; the other, confinement in a state hospital, and incidentally appointment of a guardian.” (p.269.)
The jurisdiction in that case was never acquired because of the absence of the incompetent from the state. Although the matter of guardianship is incidental to the provisions under chapter 76, yet there appears to be no good reason why the proceedings may not be recognized as valid' under it when there is no jurisdictional element-lacking and the finding of the court was within the provisions of that act. We think on this jurisdictional feature that the trial court was justified in holding the adjudication of the probate court valid and not void.
In the same connection it is insisted that the failure of the probate court to appoint counsel was a jurisdictional matter and rendered the proceedings void. We cannot agree that this failure lost the court jurisdiction, if it had otherwise been acquired, but at most would make the proceedings voidable. R. S. 39-203 gives the one on trial the right to be assisted by counsel, and if none has been selected it is the duty of the court to appoint one. Under R. S. 76-1207 it would appear that counsel is to be appointed by the court when inquests are made by a jury and not necessarily when the hearing is by a commission, as in this case.
Appellants refer to the affidavit of the sister, which was the basis of the inquiry, as not being a sufficient basis for any proceeding under chapter 76. It does not use the term “insane,” but it does state that the party is “suffering under mental derangement,” and the same degree of formal pleading is not required in inferior courts as in the district courts.
Many other points are emphasized by appellants, but they come directly or indirectly under the jurisdictional and other features above discussed. Another matter mentioned by the trial court in connection with his ruling was the inconsistent attitude of the sister who instituted the original proceeding and also instituted this proceeding to set that proceeding aside by attempting to show that what she did and was permitted to accomplish was void and without any authority whatever. Her contradictory position is not commendable, and if the ultimate matter involved were not for and . in behalf of another, could have deserved nothing further than censure. But full consideration was given the matter in the trial court and on review we find no error in overruling of the motion to remove the guardian and to quash the guardian proceedings.
The hearing on the other branch of the case, namely, that Mrs. Seaverns has been restored to her right mind, is still open and is all important. The possible or probable financial gains or benefit of other parties or relatives will be of no concern whatever in that connection and if she has been restored to her right mind the guardianship should be closed regardless of financial consequences.
The judgment is affirmed and the cause is remanded with directions to proceed with a trial of the remaining branch of the case.
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The opinion of the court was delivered , by
Harvey, J.:
This is an action for a balance of $750 claimed to be due for the rent of pasture and farm land for the year 1928. The trial court sustained a demurrer to plaintiff’s evidence, and he has appealed.
The record discloses substantially the following: Plaintiff owned, in Kearny county, 1,120 acres of pasture land and 320 acres of farm land, and 40 acres, a part of which was farm land and the rest pasture. There was a set of improvements, and a small part of the pasture near the improvements was fenced. The rest of the pasture land was scattered, and all of the land was situated within a large pasture or range containing about forty sections, owned by various individuals. Defendants were in the sheep business. Plaintiff met defendants at Garden City about May 1 and told them about his land, that his improvements constituted a headquarters for the large pasture; that he had two windmills on a half section about a mile east of the headquarters, and represented that he owned all the fences around the large pasture or range; that a Mr. Lee, who had formerly used his land, had Used all of the pasture, and he saw no reason why it could not be continued, although he would not want to put into a lease descriptions of lands which he did not own. There was talk about a written lease, but whether all the terms of the lease had been agreed upon is not clear from the record. One of the defendants talked with plaintiff by telephone on May 13. On May 14 the defendant Carter wrote plaintiff, inclosing a check for $250 “on pasture and plow land per our conversation and phone talks; that is, about two sections of grass land, water plants and improvements; also half section of plow land. This two sections being all the grass land you own.” The letter asked for the numbers of plaintiff’s land so a lease could be drawn, stated the sheep were being moved to the pasture, spoke of paying an additional $250 July 1, and $500 in the fall. Upon receipt of this letter plaintiff prepared a lease in duplicate which described the pasture land and the farm land above mentioned, and also described the about forty acres, “should party of the second part desire the same,” and was for'a term of three years beginning May 1, 1928," and provided for the payment of rent, $1,000 for the first year and $1,-200 each for the second and third years, and containing other covenants usual in leases. Plaintiff mailed the unsigned lease to the defendant Carter on May 17,- with a letter in which he asked defendants, to sign the lease and return it to him, and, among other things, stated: “If anything you want to talk about we will come to a mutual agreement when I come out.” Defendants did not execute the lease, but on May 25 wrote plaintiff that on moving sheep to the ranch they found it stocked with from 300 to 500 cattle and a lot of horses; that they could find no one attending to the stock, but the neighbors stated they belonged to Mr. Lee. The letter stated:
“That large a bunch of stock will keep the grass down and especially around the water holes. ... I understood you that Mr. Lee had moved his stock, . . . What can be done to get him off? He should certainly pay you good and plenty, which would allow you to give me a credit, but even then, I would much rather he did not have them there, . . . they keep the grass down just where I most need it. I felt sure you did not know stock was running there.”
There was further correspondence, and a consultation in July. We need not detail all of it. The result was that Lee’s stock stayed on the pasture all summer. Defendants did use the improvements and the farm land and had their sheep in the large pasture, but had to hire an extra man with them, which was an expense, and the stock did not do well.
Plaintiff’s contention is that defendant’s letter of May 14 and plaintiff’s letter of May 17 inclosing the unsigned lease, and the fact that defendants went into possession of the improvements and farm land, made a valid and binding obligation on defendants to pay the full amount of the rent called for in the lease. Citing Bard v. Elston, 31 Kan. 274, 1 Pac. 565; Barhyte v. Real-estate Co., 66 Kan. 390, 71 Pac. 837; Marks v. Chumos, 82 Kan. 562, 109 Pac. 397; Willey v. Goulding, 99 Kan. 323, 161 Pac. 611; Skinner v. Davis, 104 Kan. 467, 179 Pac. 359; and allied cases. The difficulty with this argument and the authorities cited, when applied to the facts in this case, is that the plaintiff in this action did not put defendants into possession of all of the leased premises. A large part of it — practically all of the pasture land — remained in the possession of a prior occupant to such an extent as to deprive defendants of the beneficial use of those premises.
Whether the lease contained a covenant of quiet enjoyment of the leased premises or not in the absence of such a covenant one is implied. (Stewart v. Murphy, 95 Kan. 421, 148 Pac. 609.) See, also, annotation on this case where it is reported in Ann. Cas. 1917C 612, 615 to 619. See, also, annotation on this subject in 62 A. L. R. 1257, where it was said:
“While there was some difference of judicial opinion regarding the rule at an early time, it seems now to be established that, in the absence of an express covenant inconsistent therewith, the ordinary lease of realty raises an implied covenant that the lessee shall have the quiet and peaceable possession and enjoyment of the leased premises, so far as regards the lessor, or anyone lawfully claiming through or under him, . . .” (p. 1258.)
A number of cases are cited. (See, also, the discussion in Anderson v. Bloomheart, 101 Kan. 691, 168 Pac. 900.) Here the evidence •disclosed that Lee was a prior occupant of the premises. Plaintiff represented to defendants that Lee would move his stock from the premises about May 1. This was not done. Perhaps defendants would not have undertaken to use the premises at all had they understood that situation would continue. They did make use of a part of the premises. No lease was ever agreed upon between the parties as to the portion of the premises which defendants did use. The letters and unsigned lease implied a covenant of peaceful possession and quiet enjoyment, which covenant was never complied with. The trial court properly denied plaintiff a recovery upon the theory that these instruments, coupled with the taking of possession of part of the premises by the lessees, constituted a valid obligation for the payment of the full amount of the rent, for the reason that defendants never took nor obtained full possession of the leased premises.
There was no. error in the ruling of the court below, and the judgment is affirmed.
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The opinion Of the court was delivered by
Smith, J.:
This is an action brought by one of the trustees of the will of Edward Hall, deceased, for the purpose of having the district court construe the will and give a declaratory judgment thereon. The court construed the will with regard to the proportionate shares of the defendants, Walter Ralph Hall and Catherine Young. From the judgment of the court Walter Ralph Hall appeals. The pertinent part of the will of Edward Hall, which the court construed, is as follows:
“Third. All my remaining estate, both real and personal, of whatsoever kind, and wherever situate, I give, bequeath, and devise to Mrs. Mary McCloud, of Sterling, Kansas, Prank L. Snodgrass, and J. P. Warden, both of McCracken, Kansas, as trustees, to hold all the same in trust for my daughter Catherine Hall and my son Walter Ralph Hall in shares as follows, to wit: Two-thirds of all said estate for Catherine and one-third of all said estate to Walter Ralph. Said trustees shall have power and are hereby directed—
“(a) To sell any and all property, both real and personal, and to convert all said property into money as speedily as practicable, and to invest said money so as to bear reasonable rates of interest, all for the use and benefit of said daughter and son, as heretofore named.
“(b) Out of such interest, and principal, if necessary, and any rent or other funds coming into their hands,’ to meet all necessary expenditures for my daughter’s care, keeping, clothes, education, and other necessaiy purposes relating to her welfare, as may be needed from year to year until she shall become of legal age, and .then and thereafter my said trustees are directed, out of said interest, principal, rents, or other funds available, to pay to my said daughter, Catherine, the sum of $600 yearly, to be for her use and benefit as she may see fit to use same, for her reasonable expenditure, for each year until she shall reach the age of forty years, when all of her two-thirds of my estate shall be paid and delivered to her to be hers absolutely.
“(c) And further, out of said interest, principal, if necessary, and any rents or other funds coming into said trustees’ hands to pay to my son, Walter Ralph, annually, after my daughter shall become of age, the sum of $300 per year, for each year until my said son shall reach the age of forty years, when he shall be paid all his one-third share of my estate, to be his absolutely. It is my will that my son receive nothing from my estate until my said daughter shall become of age as above set out.
“(d) I authorize my said trustees to collect my life insurance, of which my daughter Catherine is the beneficiary, on the policy held by me in the Modem Woodmen of America, and to invest same in the same manner for her benefit, all as set forth above for the investment of the balance of the money coming into their hands from her share of my estate, and to finally pay same to her in full when she shall attain the age of forty years. In case it shall be necessary to have a guardian appointed to collect said insurance, my executors are hereby authorized to choose such guardian, who may be one of my executors.”
At the time this will was made the daughter Catherine spoken of was a little girl and the Walter Ralph Hall spoken of was about grown. The situation at the time of the bringing of this suit was that Ralph Hall had reached the age of forty and Catherine Hall, who is now Catherine Young, had reached the age of twenty-one. The time had come when Ralph, under the terms of the will, should receive his share of the estate, which was devised to him under the third paragraph of the will. The dispute is as to whether he was entitled to one-third of the estate as of the date of the death of the testator or whether he is only entitled to one-third as it existed on the day his sister Catherine became twenty-one. The court below concluded that Ralph was only entitled to one-third of the estate that was left at the time Ralph became forty years of age. The trustee and Ralph appeal and urge that under the terms of the will he is entitled to one-third of what the estate amounted to at the time of the death of the testator. This court has held many times that the cardinal rule in the construction and interpretation of wills is that the intention of the testator must be ascertained, if possible, from the entire language of the will as such intention is manifested, either expressly or by necessary implication, and that it is proper for the court to consider the circumstances surrounding the testator. (Warren v. Phebus, 132 Kan. 816, 297 Pac. 657; Morse v. Henlon, 97 Kan. 399, 155 Pac. 800.)
With that rule in view, let us examine the provisions of the will and the circumstances surrounding the testator. Catherine was a motherless child when the will was written — Ralph was almost grown at that time. The testator provided that out of the interest that should be earned bv the money which he devised to his children —“'all necessary expenditures for his daughter’s care, keep, clothes, education and other necessary purposes relating to her welfare should be paid until she became of age.” The same clause provides further that if necessary the principal of such legacy shall also be used for the.same purpose. The other provision in the will is that Ralph receive nothing from the' estate until Catherine should become of age. From these two provisions, we think the intention of the testator is clearly manifest that the trustees should use this entire estate, even if it became necessary to exhaust it entirely, to properly care for Catherine until she became of age. It was the intention of the testator, and the thing in which he was most interested, that Catherine should be properly reared and educated and not be a charge upon anybody’s bounty during the years that she would be growing up and going to school and getting her education. It was not until all this had happened, the testator provided, that Ralph should draw from the estate until he became forty years of age the $300 per year, so that the testator safeguarded in every way he knew possible any diminution of this estate until the thing in which he was interested above all other things — that is, the proper raising and care of Catherine while she was a child — should have been accomplished.
With all these things in view, we have concluded that the judgment of the court below is correct and that Ralph was only entitled to one-third of what was left of this estate when he became forty years of age, since the record discloses that at the time he became forty years of age his sister Catherine would have become twenty-one.
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This action is by school district No. 12, Ottawa county, against the county treasurer and board of county commissioners of Ottawa county, to recover something more than $7,700, alleged to be in the hands of the county treasurer, belonging to the plaintiff school district. The answer of the defendants was a general denial and allegations of having overpaid the plaintiff school dis trict in the sum of $1,246.64, and the answer concluded with the prayer for the recovery of that amount from the school district.
The failure of the Minneapolis National Bank, one of the depositaries of the county funds, and the issuance of a subsequent or duplicate check by the county treasurer gives rise to the controversy.
The whole matter is reduced to one legal question and that is, Was the first check for $9,000, issued by the county treasurer, a payment to the school district? If it was the school district has been overpaid by the issuance of the second check for $9,000 to the extent of $1,246.64. The trial court made findings of fact and conclusions of law in favor of the defendants and rendered judgment for defendants against the plaintiff school district for $1,246.64, from which judgment the plaintiff appeals.
The appellant accepts the findings of fact as the facts in the case and assigns error as to the conclusions of law as follows:
“1. In overruling appellant’s motion for judgment on the findings of fact.
“2. In sustaining appellees’ motion for judgment on the findings of fact.
“3. In overruling appellant’s motion for a new trial.
“4. In rendering judgment in favor of appellee as against this appellant.”
The essential points in the findings of fact are as follows: On February 4, 1929, the plaintiff school district issued an order upon the county treasurer in favor of its school-district treasurer, Mrs. H. D. Billings, for $9,000, which was less than the amount in the hands of the county treasurer belonging to the school district on that date. On February 5, 1929, Mrs. Billings, through her husband, H. D. Billings, president of the State Bank of Delphos, which was located fourteen miles from Minneapolis, the county seat of Ottawa county, presented the order of the school-district board to the county treasurer for payment, and the county treasurer at once that day in payment of the order issued his check upon the Minneapolis National Bank to the order of Mrs. Billings, school-district treasurer, in the sum of $9,000. Mr. Billings was duly authorized by his wife to represent her in this matter, although he had no official connection with the school district. The Minneapolis National Bank was located two blocks from the courthouse where he received the check from the county treasurer late in the afternoon of February 5. When the check was received by Mr. Billings he delivered the school-district order to the treasurer with the following indorsement thereon: “Received amount of order, Mrs. H. D. Billings, State Bank of Delphos, Delphos, Kansas, H. D. Billings, Pt.” The check on the Minneapolis National Bank was not presented to that bank for payment on that day, nor on the following day, nor presented for collection to any other bank in the town of Minneapolis, but was on the 5th day of February indorsed as follows: • “Pay to the order of Fidelity Nat’l Bank, Kansas City, Mo., Mrs. H. D. Billings, by H. D. B.,” and the check was mailed on the same day by the husband of the school-district treasurer from the Ottawa County Bank in Minneapolis, Kan., to the Fidelity National Bank and Trust Company of Kansas City, Mo., with the following directions: “I am inclosing for credit to the account of the State Bank of Delphos, check number 11,636 upon the Minneapolis Nat’l Bank, Minneapolis, Kan., for $9,000. We can use another $10,000 or $15,000 of paper if it is convenient.” The State Bank of Delphos did not indorse the check, but thus sent it to the Fidelity National Bank, its correspondent in Kansas City, Mo.
Mrs. Billings kept her account as treasurer of the plaintiff school district at her husband’s bank, the State Bank of Delphos, and upon the 6th day of February her husband gave her, as treasurer of the school district, credit on the books of the bank for $9,000. She has no account as treasurer or otherwise with the Fidelity National Bank of Kansas City, Mo.
The check was sent by her husband to the Fidelity National Bank not for collection and remittance but for collection and deposit, and upon receipt thereof the Fidelity bank gave credit on its books to the State Bank of Delphos for the amount of the check. The Fidelity National Bank on February 6 indorsed and delivered the check to the Federal Reserve Bank, at Kansas City, Mo,, for collection, and the Federal Reserve Bank immediately gave credit to the Fedelity bank 'for the amount of the check and indorsed the check'and transmitted it by mail, with other items, directly to the Minneapolis National Bank at Minneapolis, Kan. The aggregate •amount of all the items thus transmitted, including the $9,000 item, was $22,030.32. The Minneapolis National Bank, the drawee of the check and' the other items, received the same on February 7, and on the same day transmitted to the Federal Reserve Bank in payment of these items two drafts, one on the Fidelity National Bank for $9,030.32. The $9,000 check was that day stamped by perforations “Paid 2-7-29,” and the amount of the check was that' day charged, to the defendant county treasurer upon the books of the Minneapolis National Bank and the check was paid February 7, 1929. The two drafts that were sent on the 7th of February to the Federal Reserve Bank at Kansas City were received February 9, but before they were received that day both the Federal Reserve Bank and the Fidelity National Bank had been notified that the Minneapolis National Bank was closed, and no showing was made why the $9,030.32 draft was not returned to the Fidelity National Bank upon which it was drawn on February 8, nor why both drafts were not in due course presented on February 8. On February 9, when the draft of $9,030.32 was presented by the Federal Reserve Bank to the Fidelity National Bank, it had on deposit to the credit of the Minneapolis National Bank the sum of $17,819.38. The Federal Reserve Bank on February 9, when the $13,000 draft reached it, had on deposit to the credit of the Minneapolis National Bank the sum of $13,372.79. On February 4, 5, and 6, 1929, the county treasurer had on deposit in the Minneapolis National Bank more than $51,000, and on February 7, after payment of the $9,000 check on the account, he still had on deposit in that bank more than $41,000, and he continued to have on deposit in that bank on February 8 and 9 more than $41,000; that on February 5, the day on which the check was issued, the Minneapolis National Bank had cash and cash items in its bank to the amount of more than $43,000; on February 6, to an amount of more than $18,000, and on February 7, at the close of business, an amount of more than $6,600. On each of these dates, however, the actual cash in the bank was approximately $4,000. In addition to the above cash items the Minneapolis National Bank had upon each of the above-mentioned dates, after deducting the amount of the drafts drawn by it upon its accounts in other banks, an amount in excess of $40,000, and on the 9th of February, after the bank had closed, it had on deposit in other banks more than $41,000, and after deducting the two drafts above mentioned it still had on hand in other banks more than $10,-000; that it was customary in February, 1929, for country banks not to carry large amounts in their vaults as a matter of safety, and that the Minneapolis National Bank had arrangements whereby it could speedily provide cash in larger amounts if the same was required.
The court further found:
“On February 7, 1929, the Minneapolis National Bank had insufficient money on hand wherewith to pay the items aggregating $22,030.32, which it that day received from the Federal Reserve Bank as aforesaid.”
“The holder of said check in the sum of $9,000 issued by the defendant treasurer to Mrs. H. D. Billings, treasurer, upon February 5, 1929, was negligent in not presenting it to the Minneapolis National Bank for payment before the close of business upon February 6, 1929. The agent of the holder of said check, the Fidelity National Bank and Trust Company, was negligent in sending said check through the Federal Reserve Bank of Kansas City, Missouri,'to the Minneapolis National Bank, upon which it was drawn, for collection; and the Federal Reserve Bank of Kansas City, Missouri, was negligent in forwarding said check for collection to the Minneapolis National Bank, upon which it was drawn.”
“If said check had been presented to the Minneapolis National Bank by the holder thereof before the close of business upon February 6, 1929, it would have been paid.
“If said draft remitted by the Minneapolis National Bank to the Federal Reserve Bank upon February 7, 1929, had been presented to the Fidelity National Bank and Trust Company upon February 8, 1929, it would have been paid.”
“The defendant treasurer was not responsible for the sending of his said check, issued February 5, outside of the state of Kansas for deposit and collection.
“Upon February 13, and upon the representations of the State Bank of Delphos that said check, dated February 5, 1929, had not been paid, the defendant treasurer, without authority to do so, issued his check in the sum of $9,000 to the State Bank of Delphos, drawn upon the State Bank of Delphos, in lieu of said check issued February 5, 1929; and upon February 14, 1929, without indorsement, the State Bank of Delphos stamped said check by perforation : ‘Paid 2-14-29/ and charged the same to the account of the defendant treasurer, in the State Bank of Delphos. The plaintiff school district received upon this check the sum of $9,000.”
The conclusions of law made by the trial court are as follows:
“(1) The plaintiff accepted the check of the defendant treasurer, issued by him, in full payment of plaintiff’s warrant drawn upon him and presented to him for payment February 5, 1929.
“(2) The check of the defendant treasurer, issued and delivered by him to the treasurer of the plaintiff at the former’s office in Minneapolis, Kansas, upon the Minneapolis National Bank (which had its banking house in said city), should have been presented to said bank for payment either that or the succeeding business day.
“(3) The holder of said check was negligent in sending said check out of the state of Kansas for deposit and collection.
“(4) None of the banks, the State Bank of Delphos, nor the Fidelity National Bank and Trust Company, nor the Federal Reserve Bank, as collecting agent, could relieve itself from responsibility of due care in the collection of a check or draft by its rule that it gives credit for the same with the right to charge the amount thereof back in the event it is not finally paid.
“(5) The check issued by the defendant treasurer, upon February 5, 1929, was paid by the Minneapolis National Bank upon February 7, 1929.
“(6) The check, dated February 13, was issued by the defendant treasurer under a mistake of fact and without authority of law.
“(7) Neither of the defendants is responsible for the method adopted or the delay occasioned by the holder of the check of the defendant treasurer, issued and delivered by defendant treasurer to the plaintiff upon February 5, 1929, in the collection and remittance thereof for deposit in Kansas City, Missouri.
“(8) The defendants are entitled to judgment in their favor against the plaintiff in the sum of $1,246.64, with interest thereon at the rate of six per cent per annum from November 18, 1929.”
The four grounds upon which the appellant contends the conclusions of law are erroneous are stated in its brief as follows:
“1. That the rule of ‘diligence’ applicable to commercial paper does not obtain in the transfer of funds from the county treasurer to any of the political subdivisions.
“2. That granting legal ‘negligences’ in the collecting of the check, no ‘loss’ resulted therefrom.
“3. That the alleged ‘negligences’ are not attributable to the school treasurer.
“4. That issuance of the second check was a settlement of the controversy.”
A matter which is frequently urged and pressed throughout the brief of the appellant in the presentation of its position on the above-stated propositions deserves preliminary consideration so that we may not be viewing the situation from different angles. It is the denial of the authority of Mr. Billings or anyone but the school-district treasurer to indorse the check. The findings of the trial court cover the authority from the school-district treasurer to her husband as her agent to present and surrender the school-district order and receipt for the check, but appellant properly insists that this authority falls short of authority to indorse and forward the check for collection or deposit. The court seems to have made no finding as to such further authority, and by reference to the pleadings perhaps such omission was intentional because it was not a matter in issue under the pleadings. The answer alleged:
“Upon February 5, 1929, the said Mrs. H. D. Billings as treasurer of the plaintiff, school district, acting by her husband and agent, H. D. Billings, who was by her then and there duly authorized so to do, indorsed said cheek to the order of the Fidelity National Bank of Kansas City, Missouri, and transmitted said check to the Fidelity National Bank and Trust Company of Kansas City, Missouri.”
And the reply thereto is that plaintiff “admits and alleges that the said Mrs. H. D. Billings as treasurer as aforesaid on February 5, 1929, caused said check to be forwarded to the Fidelity National Bank and Trust Company of Kansas City, Missouri, for collection”; and further, “that it had long been customary for the said Mrs. H. D. Billings to collect plaintiff’s money from said county' treasurer by means of checks for the same of the county treasurer and to deposit such checks of the county treasurer with the State Bank of Delphos, and to have the last aforesaid bank collect the same in due course according to the banking usages.”
Causing a check to be forwarded for collection in due course according to banking usages includes the necessary indorsement. Under such pleadings and admissions the illegality of the indorsement is not an issue. To make the situation comparable with a forged or other illegal indorsement would require entirely different pleadings.
One other feature is frequently pressed as being within the findings that the Minneapolis National Bank could not have paid the check any time after its issue, referring to the insufficiency of the cash on hand as found by the court, but we cannot take that finding as segregated from the other findings giving the amount of cash and cash items had in the bank on the day the check was issued and each and every day thereafter until the bank closed, and also the finding of the arrangement the bank had to provide cash in large amounts whenever needed. We think the findings when taken and considered together are such as would.not authorize this court, since the findings are accepted as the facts in this case, in concluding that the ability of the bank to meet the check during the time involved was limited to the actual cash on hand.
The rule of diligence to which reference is made is by virtue of the provisions of a section of the negotiable-instruments act, R. S. 52-1703, which is as follows:
“A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.”
This rule has been interpreted in Anderson v. Elem, 111 Kan. 713, 208 Pac. 573, and other decisions, to be a reasonable time depending upon the facts and circumstances of the case.
R. S. 79-1801 authorizes the county treasurer to collect school-district levies and pay the same, when collected, to the school-district treasurer. R. S. 19-530 provides for the designation of a depository for all the funds collected by the county treasurer. R. S. 72-1018 requires the county treasurer to pay the school-district treasurer all moneys belonging to the district upon the presentation of an order from the board stating that the district treasurer has furnished a bond as required by law, and R. S. 19-534 permits the county treasurer to make such distribution by check or draft on the county depository.
No statute is cited which exempts a school district or its treasurer from the application of the rule of diligence or makes any exception of persons whatever, but the general rule seems applicable to all persons that the time must be reasonable considering the nature and character of the business, the purpose for which the funds are to be used, and the distance, convenience and all surrounding circumstances.
Three cases are cited to show the county treasurer was apparently exempt from the rule of diligence in cashing the checks of taxpayers where the checks were good when given, but for different reasons the treasurer was unable to realize upon them when he in the course of his business attempted to do so. One feature runs through all three cases which is clearly expressed in the earliest one of them, viz., Barnard v. Mercer, 54 Kan. 630, 39 Pac. 182, that there is no authority for the payment of taxes by check or draft and any attempted payment by check or draft is not a payment until the actual money is realized upon the check. In this case it was said:
“A county treasurer has no authority to receive a draft in payment of taxes, and where a draft is sent for that purpose, if payment is refused by the drawee, the county treasurer, even after having issued a tax receipt and marked the taxes ‘Paid’ on the tax roll, may proceed to collect the taxes from the lands against which they are charged.” (Syl. HI.)
The other two cases cited in this connection are Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569, and Beloit Building Co. v. Staley, 118 Kan. 141, 234 Pac. 57, in both of which the trouble arose because a bank failed before the treasurer realized on the checks given for taxes. There is no hint in either of them that the county treasurer is in. any way exempt from the rule of diligence, although the intervening time in each case would very likely have been held to be unreasonable had the delay been by an ordinary individual, but the distinction, instead of being based upon the fact that the payee was a county official, was specifically placed upon the statute, which provides:
That where any draft or check remitted to any county treasurer shall not be paid on presentation, any tax receipt issued to any such person shall be forthwith canceled by the county treasurer on his books, noting on his records that such receipt is canceled for nonpayment of the check or draft sent in payment thereof.” (R. S. 19-518.)
A fourth case is cited by appellant in the same connection which involves a slightly different set of facts, but the opinion very logically shows that the whole question is to be determined by one fact only, and that fact is the actual payment of the taxes. Here the taxes had been paid to a county depository, full credit had been given to the account of the county treasurer and he had recognized the payment and credit by drawing down part of the funds and leaving the balance on deposit under bond, and had received and accepted credit for monthly interest on the tax payments. The court distinguished between the cases above cited and others, and held the taxes had been paid and that was the real question involved. Of course, a check is only a conditional payment by whomsoever given or received, and reasonable diligence must be exercised to collect it under the rule of diligence if a loss is occasioned by delay, but the county treasurer is, under the statute, never bound by checks tendered in payment of taxes and is by statute authorized to make distribution by check or draft.
There is no question but that the county is responsible for the safe-keeping of the school-district funds until they are actually paid over to the district, as was said in the case of Myers v. Kiowa County, 60 Kan. 189, 56 Pac. 11. The same principle was emphasized in the case of School District v. Roanoke State Bank, 126 Kan. 122, 267 Pac. 35, where it was said:
“If the school-district treasurer cannot provide a safe place for the district funds in his own home or place of business, there is one perfectly safe place for them until they are needed to pay bills for teachers’ salaries and current expenses. He can let them remain in the county treasury, in the custody of a public officer who is equipped to take care of them.” (p. 124.)
The same case shows plainly that there is no exemption from the rule of diligence for a school-district treasurer. It was there said:
“The theory of the law relating to school-district moneys is that the treasurer’s accountability therefor is unqualified, and if the funds are not instantly forthcoming by him when needed to pay bills, or when his successor in office requires them at his hands, it will be no excuse for him that with the sanction of the school board or by its order he deposited the funds in a bank, and that they have been lost or tied up by its insolvency.” (p. 125.)
While the law in the last two cases cited may be applicable to some features of the case at bar, yet the situation is changed by the voluntary act of the school-district treasurer in this case. She could with perfect safety have left the funds in the hands of the county treasurer, but she did not do so. Perhaps they were needed by the district for teachers’ salaries and other expenses, but an. order was issued to draw down $9,000. Now possibly she as treasurer could have carried this order with absolute'security before presenting it, but she presented it the day after it was issued. Again, it might be argued that she could have carried for a long time the check issued to her and still have relied upon the responsibilty of the county treasurer for the safe-keeping of the funds represented by her check, but she used the check in due course according to banking usages the very day and hour her agent received it, and took credit for it the next morning on the books of her usual depository. So all the argument in favor of her right to delay and exemption from the rule of diligence is out of harmony with her own action in having it forwarded the same hour it was received.
The Texas case cited, State v. Tyler County State Bank, 277 S. W. (Tex. App.) 625, is a decision based as our own cases are upon a statute, and the decision simply interprets the statute requiring the payment of state taxes from a depository of public funds to be in money, and holding the depository liable until the check is paid.
Was the negligence, as found by the trial court, on the part of the banks attributable to the school-district treasurer? Her reply admits she, as treasurer, caused said check to be forwarded to the Fidelity National Bank for collection. It could have been presented to the drawee bank the next day, and the court finds it was negligence on the part of the holder not to do so. She was the holder until she caused it to be forwarded to the Fidelity National Bank. So she was responsible for the possibility of the banks being negligent. She caused it to be forwarded to Kansas City. The Delphos bank did not indorse the check.
Appellant insists that no loss resulted from the alleged negligent acts. This contention is supported by the appellant upon the argument and theory that the check given by the county treasurer was never paid. The court found that it was paid on February 7, when it was charged to the account of the county treasurer by the drawee bank. The funds of the county treasurer were thereby reduced by that amount, and the fact that the Federal Reserve Bank accepted drafts that were not paid does not change the situation. The finding showing that' all three of the collecting banks charged back the entries formerly made, giving credit as the check passed through their hands, does not prevent the county treasurer from sustaining the loss of the full amount of the check paid and so marked by perforation on February 7. One of the tests properly applied to determine whether or not there is a loss is by inquiring if an action could be maintained on the depository bond for recovery of the amount of this check marked paid. It would seem such an action could not readily be maintained.
“Where the depositor held a check six days before depositing it and it reached the bank two days before it closed its doors, and it was paid out of the funds to the credit of the drawer and check was canceled and returned to drawer, but the correspondent bank sent the check directly to the bank on which it was drawn and accepted from it in lieu of cash a draft which two days later was worthless, there was negligence in both transactions, but the delay in depositing the check was not the proximate cause of the loss, the latter incident being a distinct, intervening and unrelated cause.” (People’s State Bank v. Equity Exchange Ass’n, 129 Kan. 38, syl. ¶ 1, 281 Pac. 899.)
“The fact that the loss would have fallen on the depositor if a check held for collection had not been presented sooner than it was necessary where the bank failed before the time for collecting it expired does not relieve the collecting bank of liability for the loss, if, having presented the check before such failure and accepted the drawee’s check on another bank in payment, it delays presenting the latter until it is worthless because of the failure of its drawer. That a higher degree of diligence is demanded under facts like these than that which obtains between the parties to the instrument is obvious, because the drawer of the original check must be held to have contemplated that when presented it would be paid in money only, and the payee and drawee have no right, except at their own peril, to substitute some other mode of settlement which results in injury to the drawer.” (21 R. C. L. § 68.)
Some of the authorities cited in the reply brief refer to the giving of an original check, which is, of course, only a conditional payment, but the giving of a subsequent check by the drawee bank does not always come under the same rule, for then there is an added responsibility on the collector bank as representing another which modifies the general rule, as is discussed in 21 R. C. L., sections 66, 67 and 68.
An examination of all the authorities cited and applied to the facts in this case convinces us there was a loss, and that the findings and the acts and transactions narrated therein show that the check was actually paid and the funds of the county treasurer were reduced.
The fourth claim of the appellant is that the issuance of the second check was a complete settlement between the parties. The county treasurer is only a ministerial officer and not possessed of discretionary powers. His duties are outlined by statute and he has no power to make settlements by the use of public funds in his hands or subject to his check. (State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620.)
Neither would the acts of the county treasurer work an estoppel against the county with regard to the funds in his hands. In the case of Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569, at page 870, it was said:
“The principles of law upon which this claim is predicated are sound and have received the fullest sanction of courts when applied to controversies arising between individuals, but in controversies arising between undividuals and the.public these principles have no room for application. All money from the payment of taxes is public money and belongs to the county. The powers and duties of the county treasurer and county clerk in respect to public money and the payment of taxes are defined by statutes, and the county will not be estopped by misinterpretation of the statutes by either officer. The county cannot be estopped by any unauthorized act of the treasurer or clerk in respect to public money.” (See, also, Hopper v. Nation, 78 Kan. 198, 96 Pac. 77; and In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073.)
The first check was issued February 5, marked paid February 7, drafts issued same day by drawee bank to pay same. Bank closed February 9, and second check issued February 13. We have no hesitancy in concluding, as the trial court did, that it was issued under a mistake of fact and without authority of law.
We find no error in the conclusions of law based on the pleadings and facts as found by the court.
The judgment is affirmed.
Harvey, J., dissenting.
Burch, J., not sitting.
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The opinion of the court was delivered by
Burch, J.:
The action was one to compel the school district to transport plaintiff’s child to and from school. Plaintiff prevailed, and defendants appeal.
Plaintiff resides outside the consolidated district and three and three-quarter miles from the schoolhouse in the consolidated district. The schoolhouse in the district in which plaintiff resides is farther from plaintiff’s residence than the schoolhouse in the consolidated district, and it is more convenient for plaintiff to send his child to school in the consolidated district. Plaintiff owns land in the consolidated district. The statute reads as follows:
“The children of any property owner owning land in any adjoining school district, other than in towns and incorporated cities, may have the privilege of attending school in such adjoining district without extra expense and tuition, when such school is more convenient by reason of distance from the school of the district in which they live.” (R. S. 72-702.)
The consolidated district makes provision for transporting children to and from school pursuant to R. S. 72-602, which reads:
“The district board of consolidated school districts shall provide for the comfortable transportation of the pupils of said district who live two or more miles from the schoolhouse by the usually traveled road, in a safe and inclosed conveyance or conveyances, . . . Provided, That said district board may establish regular routes for the transportation of such pupils.”
A regular transportation route has been established, and a bus stops at the John Phillips residence to receive and discharge transported pupils. Plaintiff resides about half.a mile from the Phillips place and desired transportation for his child from that point to the schoolhouse and return. The district court made an order accordingly.
The school district contends there is no connection between the two statutes which have been quoted, and contends the statute relating to transportation of pupils must be strictly construed — “pupils of said district.” The statutes are social welfare statutes, in a field of great public concern — the common-school education of the children of the state — and the statutes are to be construed, together, and liberally construed.
The statutory conditions which permit plaintiff to send his child to the consolidated school are fulfilled, and the child is, in contemplation of the law, a pupil of the district residing outside the district, and is entitled to attend school in the district without tuition and without expense. This being true, the conditions entitling the pupil to transportation within the district are also fulfilled.
Some defenses were made which require only a word. There was testimony the busses were overcrowded; but the district board was willing to transport plaintiff’s child as long as plaintiff paid for the transportation. There was testimony there are other children living outside the district who may be entitled to transportation if plaintiff’s child is transported, and the district may be obliged to get another bus. Perhaps so, and if so the parents of the children pay taxes on land within the district to meet their share of the expense.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in habeas corpus which calls in question the jurisdiction and power of the district court of Wyandotte county to commit the petitioner for indirect contempt. It involves the power and authority of the district court to issue a restraining order and punish the petitioner, who was one of the defendants in the injunction suit, for violation thereof.
The sheriff, as respondent in the habeas corpus proceeding in this court, has filed a motion to dismiss the proceeding for two reasons: first, that the petitioner is not entitled to maintain the action for the reason that he has a full, complete and adequate remedy at law, namely, by appeal to this court from the judgment of the trial court where he was found guilty of contempt; and second, because the injunction and contempt proceedings show the district court had jurisdiction and the petitioner cannot maintain this action.
It is not claimed that the case comes under the inhibition of R. S. 60-2213, but it is urged on the strength of the holding in the case of In re Smith, Petitioner, 52 Kan. 13, 33 Pac. 957, and other similar decisions that since the petitioner has a full, complete and adequate remedy by appeal he is not entitled to the use of the special and extraordinary remedy of habeas corpus. The case cited recognized the right of the supreme court- to examine the judgment or order in contempt proceedings and under certain circumstances discharge the petitioner.
In the case of In re Spaulding, 75 Kan. 163, 88 Pac. 547, where the defendant had been convicted of and sentenced for larceny, the court said:
“We are prohibited by section 5167 of the General Statutes of 1901 from inquiring into the legality of any judgment of a court of competent jurisdiction in a habeas corpus proceeding for the purpose of correcting mere errors or irregularities which may be appealable. But where a court, having jurisdiction of the person and of the subject matter, exceeds its power and pronounces a judgment not authorized by law — a void judgment — relief may be granted in a habeas corpus proceeding.” (p. 165.)
The most recent expression of the court on this subject is in the case of In re Bolman, 131 Kan. 593, 292 Pac. 790, where the petitioner was charged with and held for bastardy in another and different county than that in which he and the prosecuting witness resided, and the court held:
“Habeas corpus will lie to inquire into the legality of one in custody under the order of a lower court when the question raised is the jurisdiction of the court to issue the order.” (Syl. IT 1.)
Did the district court of Wyandotte county in the instant case have jurisdiction to issue a restraining order, for the violation of which the petitioner was found guilty of contempt, fined and committed to jail?
To the motion of the respondent to dismiss this proceeding is attached a copy of all the papers connected with the injunction and contempt matters, also a copy of some evidence and the admissions on the hearing upon the citation for contempt, and from these we learn directly the allegations of the petition, the features of the restraining order, the admitted violation thereof and the finding and judgment of contempt.
The restraining order, addressed to and served upon the petitioner and other defendants in the case, among other things, restrained him and them from “picketing plaintiff’s place of business as in said plaintiff’s petition set forth, and from the use or attempted use of stink bombs in connection with plaintiff’s said business, and from the posting of notices or placards in connection with plaintiff’s business, and from’ engaging in any other instrumentalities detrimental to plaintiff’s business, and from carrying or displaying any placard referring to plaintiff or his business, or to in anywise come upon or near the premises of the plaintiff for the purpose of picketing or displaying any placard or other evidence and statement to the effect that plaintiff is unfair to organized labor, and in anywise interfering with the conduct of plaintiff’s business.”
An accusation was filed and an order of citation was issued, and to the former was attached a copy of a circular which it was alleged and admitted petitioner distributed. The answer of the defendant, petitioner here, was a general denial, a special denial as to willful and contemptuous refusal to obey orders of the court, and the following allegation:
“Further answering, defendant alleges that the subject matter of this action involves and grows out of disputes concerning terms or conditions of employment, and is wholly between employer and employee, between employees, and between persons employed and persons seeking employment.”
The circular alleged and admitted to have been distributed by the defendant (petitioner) near the plaintiff’s place of business, was entitled: “No. 3 Series — So the Public May Know,” and contained several definitions of a scab and concluded with the following:
“When you see this emblem in a theater—
I A T S E
498
“You know the operators are union men and are getting a living wage. The Electric, Granada, Home, 10th Street and Midway theaters employ union operators who are eligible to display this emblem.”
It further appeared in the evidence that the petitioner had been in the employ of the plaintiff prior to October 15.
The injunction action was commenced on January 15 by the plaintiff, the owner and proprietor of the Art Theater and engaged in the operation of a moving-picture theater at that place. . Most of the defendants in the injunction cáse are associations and or ganizations of theater employees and a local union of such and 'its officers. The defendant petitioner and a few others áre named'as individuals, and are alleged to be outsiders and not employees of the plaintiff, seeking to compel the plaintiff to pay a higher scale of wages.
The finding of the trial court was in effect that the distribution of the circular was in violation of the restraining order and that the defendant, as an ex-employee, did not come within the exemption of the statute, R. S. 60-1104 and 60-1107, providing that no injunction -shall be issued in any .case between employer and eriiT ployees growing out of- a dispute concerning terms and conditions of employment without the giving of a previous notice. The statute imposes other requirements in such cases and makes some exceptions with which we are not concerned in this case..
The very evident theory of the plaintiff'in the injunction case was to avoid coming under this statute, and his allegations as to the defendants being outsiders are perhaps sufficient for that purpose, but the answer of this defendant to the accusation raised an issue on that question as to the relation of the parties and emphasized the nature- and character of the dispute as being one concerning terms and conditions of employment. The allegations of the petition and the contents of circular No. 3 confirm this as to the matter in dispute being one concerning terms and conditions of employment, and the undisputed evidence as to the relation of the parties is that defendant had been in the employ of the -plaintiff prior to October 15 — three months before the issuing of the-restraining order which was issued the same day the petition was filed and without any notice to the defendant.
The case of Bull v. International Alliance, 119 Kan. 713, 241 Pac. 690, was very similar to this case in most particulars, the important distinction being that in it no individuals were named as defendants. All the -defendants were associations and organizations of theater employees and their officers, and it was there said:
“This statute [R. S. 60-1107] has been regarded as applying only to oases between the parties specifically named; that is, between employers and employees, between employees, and between persons employed and persons seeking employment. The defendants in this case do not fall within any of the classes stated. The action was between one owning and operating a theater and cértain labor organizations. The defendants were not employed by plaintiff or seeking to be employed, but were outsiders seeking to compel plaintiff to pay higher wages to those he had employed or might employ, and therefore defendants cannot be considered as coming within the provisions of the statute.” (p. 716.)
Does the defendant as an ex-employee fall within the provisions of this statute? Our legislature almost literally copied this section from the federal statute when it enacted the law in this state in 1913, it being chapter 233 of the session laws of that year. There are two federal decisions holding that an ex-employee comes within the terms of the federal statute.
In the opinion in the case of Duplex Co. v. Deering, 254 U. S. 443, where section 20 was being construed as applied to two individuals who were named as such and also as representatives of other members of the organization, it was said:
“Full and fair effect will be given to every word if the exceptional privilege be confined — as the natural meaning of the words confines it — to those who are proximately and substantially concerned as parties to an actual dispute respecting the terms or conditions of their own employment, past, present or prospective.” (p. 472.)
Section 20 corresponds to our R. S. 60-1107.
In an opinion written by Chief Justice Taft in the case of Amer. Foundries v. Tri-City Council, 257 U. S. 184, it was said:
“Only two of the defendants, Cook and Churchill, who left at the time of the strike, can invoke in their behalf § 20. ... It is clear that congress wished to forbid the use by the federal courts of their equity arm to prevent peaceable persuasion by employees, discharged or expectant, in promotion of their side of the dispute, and to secure them against judicial restraint in obtaining or communicating information in any place where they might lawfully be. . . . The object and problem of congress in § 20, and indeed of courts of equity before its enactment, was to reconcile the rights of the employer in his business and in the access of his employees to his place of business and egress therefrom without intimidation or obstruction, on the one hand, and the right of the employees, recent or expectant, to use peaceable and lawful means to induce present employees and would-be employees to join their ranks, on the other.” (pp. 202, 203.)
We conclude that the petitioner, defendant in the injunction action, an ex-employee, having been an employee of the plaintiff until three months before the issuing of the restraining order, was such as to come within the provisions of the statute against whom a restraining order could not be issued in a matter involving a dispute concerning terms or conditions of employment without a previous notice as provided in R. S. 60-1104 and 60-1107, and because the restraining order was issued against him without such notice and without the necessary allegations to bring the case under any of the exceptions to the general rule, the order was issued without jurisdiction or authority and was void. Under such circumstances there can be no question of the right of the petitioner to apply for a writ of habeas corpus, regardless of the fact that his remedy by appeal might be full, complete and adequate; and because the restraining order was issued without jurisdiction or authority, it was void, and the petitioner should not be held for contempt for a violation of such order.
The writ of the petitioner should be allowed. It is so ordered.
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The. opinion of the court was delivered by
Dawson, J.:
This was an action to quiet title to three town lots which the defendant Geo. W. Finnup conveyed to the board of county commissioners of Finney county thirty years ago.
The purpose of the grant in 1901 was to aid in providing courthouse facilities for the county, and the property was so used until August, 1929, at which time a new courthouse authorized by popular-vote was completed and occupied. On November 9,1929, the county board sold the Finnup lots and others which had also been occupied for courthouse purposes from 1901 until 1929. A question of the validity of the county’s title prompted the bringing of this lawsuit.
Plaintiff’s petition contained the usual allegations of a suit to quiet title. Finnup and other defendants answered with a general denial, and in a cross petition asserted their ownership of the property in controversy, being lots 12, 17 and 18 in block 36, original town of Garden City. The cross petitioners alleged that the purpose of Finnup’s deed in 1901 was merely to convey the property to the county so long as the lots should be used for courthouse purposes; that the deed of 1901 was without consideration; that the recitals in the deed and a reference therein to. the official journal of the board of county commissioners disclosed the purposes of the grant; and that the termination of the use of the lots for those purposes operated as an abandonment by the county and restored to defendant Finnup his full rights as owner of the fee. Defendants’ prayer was for possession and other legal and equitable relief.
The cause was tried without a jury and without dispute of fact. The deed from Finnup to the board of county commissioners dated October 22, 1901, recited a consideration “of one dollar and other consideration to him in hand paid” and that he granted, bargained and sold to the grantees and their successors and assigns forever all his right, title and interest in the real estate lying and situate in Finney county, to wit: Lots 12, 17 and 18 in block 36, “all in the original plat of Garden City as per the commissioners’ journal of July 3, 1901.”
The habendum clause repeated the recital that the conveyance was to the “said parties of the second part, their successors and assigns forever.”
The contents of the commissioners’ journal of July 3, 1901, to which the deed made reference, were concerned with the county board’s acceptance of a proposition of one Geo. W. Warden, the owner of another tract (lot 11) and buildings thereon, to sell it to the county for $900. Mention of the acquisition of Finnup’s town lots appeared in the record only casually to explain why the board deems it advisable to purchase Warden’s lot. Indeed, the journal only speaks of the acquisition of one of Finnup’s lots presently in dispute. It reads:
“Whereas, The county of Finney is the owner of special warranty deed from Geo. W. Finnup donated for the purposes of use by Finney county of said real property and the building thereon to wit: lot 12, block 36, original town of Garden City, and whereas, Finney county has no permanent courthouse or county building other than the jail building suitable for the needs of said county, and
“Whereas, Finney county has accepted the donation of said Geo. W. Finnup and it is deemed by said board of county commissioners to be the best interest to the people of Finney county and a saving and expense of furnishing other suitable temporary buildings for county officers and court purposes to repair said buildings so donated by Geo. W. Finnup and to extend said buildings and enlarge the same by purchase of the north room thereof, located on lot 11, block 36, of the original town of Garden City, and
“Whereas, Geo. W. Warden, the owner of said lot 11 and the buildings thereon, has proposed to sell the same to Finney county for the sum of $900 in county warrants drawn on the county treasurer of said county, and
“Whereas, The board of county commissioners deem said property to be well worth said sum, and that the purchase thereof is necessary in order to properly furnish said Finney county with suitable temporary quarters for county officers and courthouse building until such time as the people of Finney county by their vote .established a permanent courthouse site, and
“Whereas, Finney county has no permanent courthouse building or county building, except the jail building,
“Now, therefore, The board of county commissioners in regular session assembled hereby agree to purchase said building and lot 11, block 36, of and from the said Geo. W. Warden for the sum of $900, . . .” [Dated July 3, 1901.]
The trial court gave judgment for plaintiff quieting its title to the three lots in controversy and also to lot 11 not presently involved.
Finnup and wife appeal. At the onset their counsel assert that the legal question at issue is not the simple one it appears to ber but a very profound one calling for thorough and patient consideration of those abstruse subtleties of law involved in base or determinable fees, estates upon implied conditions, qualified fees with conditional limitations or with .conditions subsequent, to treat of which with proper comprehensiveness might require us to resort to. authorities like Lyttleton and Coke for their proper determination.
We do not think the case presents any such profound question of' law. On the contrary, an express provision of our local statute-virtually determines it. R. S. 67-202 provides:
“. . . Eveiy conveyance of real estate shall pass all the estate of the-grantor therein, unless the intent to pass a less estate shall expressly appear- or be necessarily implied in the terms of the grant.”
Nothing expressly appears in the conveyance of 1901 to indicate-an intention on the part of the grantor that he intended to pass to-the grantee anything less than all the estate he held in the property. The recitals of the deed are unqualified and do not hint that the- grant was of a limited estate. The commissioners’ journal recites nothing concerning Finnup’s intention to limit the estate conveyed by the deed to lot 12, which he apparently had executed prior to July 3, 1901. The journal says nothing whatever concerning the grantor’s intention in making the deed of October 22, 1901, which is the basis of the county’s title. Neither do we find any foundation for the defendant’s claim that the grantor’s intention to convey a less estate than the whole is “necessarily implied” in the terms of the grant. In Curtis v. Board of Education, 43 Kan. 138, 23 Pac. 98, the heirs of the grantors of a tract of land in North Topeka conveyed for school purposes sought to recover it because the grantee had quitclaimed it to its successor in title, the board of education of the city of Topeka. In some respects the case is not analogous to the one at bar, but the following language in the opinion is instructive and pertinent:
"The authorities are uniform, that estates' upon condition subsequent, which after having been fully vested may be defeated by a breach of the condition, are never favored in law, and that no deed will be construed to create such an estate, unless the language to that effect is so clear that no room is left for any other construction. (2 Devlin on Deed, § 970 et seq., and cases there cited.)” (p. 144.)
In Garfield Township v. Herman, 66 Kan. 256, 71 Pac. 517, the action was one of ejectment to recover a tract of land which the grantor had conveyed to the de facto county of Garfield for courthouse purposes in the town of Ravanna. Eventually the county seat was located elsewhere, and Herman, who claimed under the grantor, sought to recover the property from Garfield township, legal successor of the de facto county. The trial court gave judgment for plaintiff, but this court reversed that ruling and held:
“In a deed conveying ground to a county there was a recital that it was to be used for courthouse purposes, but it contained no provisions for forfeiture, or that the property should revert to the grantor under any circumstances. Held, that an absolute estate in fee simple was conveyed.” (Syl. 112.)
The scholarly brief prepared by counsel for defendants has been perused with interest and profit, but it does not shake our opinion that the judgment of the district court was correct, and it is therefore affirmed.
Hutchison, J., not sitting.
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The opinion of the court was delivered by
Sloan, J.:
Defendant was convicted of unlawfully having intoxicating liquor in his possession, and found not guilty of maintaining a common nuisance. He appeals and contends that the evidence was insufficient to establish the fact of possession.
A warrant was placed in the hands of the undersheriff of Coffey county to search “the Elliott place” near Waver ly. The under-sheriff was accompanied by a deputy and the county attorney. They first went to a restaurant in Waver ly occupied by Elliott. From there they went to the “Elliott place,” and the defendant accompanied them. On the way out the defendant said: “When you get out there, don’t scare the women, because they have nothing to do with this business.” On reaching the premises they found Mrs. Davis and other women. It was testified that Mrs. Davis said, in the presence of the defendant, “They had to make a living some way,” and the defendant made no response.
The premises were searched and the officers found nine cases of beer, thirty-five or forty gallons of beer in the making, two pieces of hose, one hundred empty bottles, bottle capper, an oil stove and other paraphernalia upstairs in a room which was locked with a padlock. The downstairs was searched and they found a bottle contain ing a small amount of whisky in one corner of the kitchen; also some empty bottles and a few bottles of beer in a commode or washstand in the kitchen.
A witness testified:
“A. Well, the county attorney asked (defendant) 'Do I understand you to say you are willing to take the blame and leave the women folks out?’
“Q.-What did he say? A. Yes, if I can do that.”
Another witness testified that he heard the defendant tell his wife: “Our rent won’t be so damned cheap, after all.”
The sheriff testified that he was acquainted with the defendant, and knew the place the defendant occupied; that the defendant said he lived at the place where the search was made, called it home and his folks were there.
O. T. Elliott testified on behalf of the defendant; assumed full responsibility for the existing condition and claimed that he was the owner of the beer and the paraphernalia used in connection therewith.
The appellant earnestly contends that the evidence under the authority of the State v. Metz, 107 Kan. 593, 193 Pac. 177, is insufficient to establish possession of intoxicating liquors. We hold otherwise. The evidence shows that the appellant was in possession of the premises, or at least a part of the house where intoxicating liquor was found. His statement to the officers amounted to recognition of criminal responsibility. A party may be a copossessor, or he may participate in the possession of intoxicating liquors, and under either circumstance he has violated the statute. (State v. Wagoner, 123 Kan. 591, 256 Pac. 957.) The evidence was substantial and sufficient to support the verdict of the jury. The fact that the appellant was found not guilty of maintaining a common nuisance and guilty of having intoxicating liquor in his possession is of no avail. (State v. Brundige, 114 Kan. 849, 220 Pac. 1039.)
It is also urged by the appellant that the court erred in admitting in evidence the statement made by Mrs. Davis in the presence of the appellant. This was not error. (State v. Cruse, 112 Kan. 486, 212 Pac. 81.)
There was no reversible error committed against the appellant, and the judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.;
This action was brought to recover damages for the death of the husband of appellant, caused by the car he was driving going through an alleged defective bridge railing and killing him. The general verdict was for $3,750 and costs. Judgment was for defendant on account of the answers to special questions. Plaintiff appeals.
The facts are that on February 25, 1929, William McGuire drove upon the bridge in question. The road was rather slippery and icy. He did not have chains on his car. While traveling at the rate of about eight to ten miles per hour he struck the railing of the bridge which immediately gave way, allowing his Ford roadster to go over the side of the bridge and upset, instantly killing him. He left a widow and ten children, and suit was brought by her to recover damages for his death. The jury returned a verdict for $3,750. In answer to special questions they determined that the guard rails in question were not good, sound and substantial guard rails; that McGuire was not negligent in any particular which contributed to the accident; that the bridge was not a low-water bridge; that the bridge at the time of the accident was very slippery; that McGuire did not have chains; that his car was going from eight to ten miles an hour at the time it hit the bridge rail, and that it hit the railing at an angle of approximately thirty degrees.
Question No. 2 was as follows:
“Did the chairman of the board of county commissioners of Ellis county have actual personal notice or knowledge of such defective condition at least five days before February 25, 1929?”
The jury answered that question “No.”
On account of the above answer the trial court set aside the general verdict and rendered judgment for the defendant on the special findings.
Before damages can be recovered against the county on account of the defective condition of the highway the statute provides that—
“The chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained.” (R. S. 68-301.)
During the trial of this case two men were called to the stand who had been chairmen of the board of county commissioners of this county. John Jacobs testified that he had been the chairman of the board for six or eight years preceding 1929, and that F. H. Atwood succeeded him. The record is not clear as to when Atwood succeeded Jacobs. Jacobs thought the change took place on January 8, 1929, but that his successor was not elected and qualified until the April meeting, although he testified at another time that he thought the change took place January 8,1929. Mr. Atwood thought that he was made chairman of the board.about January 10, 1929, and was chairman from that date until after the accident on February 25, 1929. Both these gentlemen testified quite frankly as to what knowledge each had of the condition of the guard rails of the bridge in question.
The question in this case is as to whether, in view of the undisputed evidence of these two commissioners, there was any evidence to sustain the findings of the jury in answer to question No. 2 above quoted. This court has held that no particular notice of defect is necessary; that it is sufficient if the chairman of the board of county commissioners had actual knowledge of the defect. (Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070.) We have held that it is not necessary for the chairman of the board of county commissioners to have actual knowledge of any particular hole in the bridge. (Watkins v. Harper County, 95 Kan. 166, 147 Pac. 822.) In view of these rules we will examine the testimony of the two chairmen of the board of county commissioners as to what knowledge they had of the actual condition of this railing. John Jacobs testified that he was familiar with the highway upon which the bridge was located and that he traveled it probably once a month; that he saw the railing down at the time of the big flood in 1928; that he gave instructions to the county engineer for it to be replaced, but he never went over the work to see how it was done; that when he crossed the bridge he would look at the railings and most of the time they were up; that every once in a while he would find the railings down. He had heard of such accidents once or twice; that he read .in a paper in Los Angeles that a Mr. Fisher was killed on the same bridge; that-on one occasion when he was chairman of the board, the condition of the bridge and railings was discussed before the board. He did not remember whether complaints were made to the board about the guard rails or not; that every time the rails were replaced the same metal and material were used as before. Part of his examination was as follows:
“Q. Do you know how they were fixed, how the guard rails were fastened to the bridge? A. I seen them already, but I don’t know how; there is a little shoulder on the edge of the bridge probably three or four or five inches high and about six inches wide, and there is a plate fastened on that shoulder, and this particular plate is screwed on with several bolts. I don’t know whether it’s four or five or six. I don’t know whether % or what they are, but they’re pretty good size, and then there’s threads on inside of these holes and the uprights are cut in threads and supposed to be screwed in there, and whether they were screwed clear in or not I don’t know.
“Q. Did you ever look to see? A. Yes, sir; I did, but I don’t know when.”
Mr. Atwood, the other chairman, testified that he drove over this bridge almost every day for a long time prior to the accident; that he knew of the occasion of the flood washing the guard rails off the bridge; that probably it occurred both in 1928 and 1929; that he was present when the guard rails were being repaired on this bridge. He did not think any portion of the railing on the south side had been down shortly before the McGuire accident, but he wouldn't be positive. Repairs were always made just as soon as they could work on it. He did not think very many complaints were made to the commission. He knew of the fact that the guard rails had been knocked down on different occasions and that it was frequent, and that such a condition ran along for some months prior to and down to the time of the McGuire accident. He never looked to see how the guard rails were fixed on the bridge, but he did know that about every year they were washed down by the flood. He' had driven over the bridge many times when they were making repairs after the guard rails had been knocked down by other conveyances going by.
The determination of whether a person had actual knowledge of a condition can only be determined by an exploration of the mind of the person. And we have in this case the very best means of conducting such an exploration; the testimony of the persons themselves apparently answering questions in a rather frank manner. Here we have a condition where the guard rails had been repeatedly repaired after they had been washed away by different floods and after they had been knocked down by vehicles. Both of these men had actual knowledge of this condition. The fact that the repairs were repeatedly made from the same material and that the construction was such as was testified to by Commissioner Jacobs, together with the fact that a Ford car could crash through the railing while going at the rate of eight or ten miles an hour, is very conducive to the conclusion that these railings had not been repaired at all. They rather had been “just cobbled up.” Rather than being any protection to travelers upon the bridge, these railings were an actual menace to him by conducing a feeling of safety when actually their condition did not warrant such a feeling. The evidence is uncontradicted that t Commissioner Atwood and Commissioner Jacobs both knew of the condition of these railings and they both knew they were defective for many more than five days prior to the happening of the accident.
In view of what has been said we conclude that the undisputed evidence in the case did not warrant the jury in making the answer that it did to question No. 2, and that the motion to set aside the answer to this question should have been sustained.
Appellee points out that the jury failed to answer question 17, which was as follows:
“What was the proximate cause of the McGuire car’s running off. the bridge on February 25, 1929?”
And that the discharge of the jury by the court without compelling them to answer this question would entitle the appellant to a new trial merely, not a judgment, even though the court should reach the conclusion it has reached as to the answer to special question No. 2. However, the failure of the court to compel the jury to answer question 17 was not appealed from by appellee, and they cannot complain of that failure now.
The case will, therefore, be reversed with directions to set aside the answer to special question No. 2 and enter judgment for the plaintiff in the amount of the general verdict.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover the agreed price for harvesting barley and to enforce a harvester’s lien authorized by statute. (R. S. 58-203 to 58-206.) The defendants were G. E. Fike, a grain naan, who purchased the barley after it was threshed, L. L. Chaffin, the owner of the real property on which the barley was grown, and T. V. Lowe, who had made the contract with plaintiff for the harvesting of the barley. The barley was harvested in 1928, and on August 11, soon after the harvesting was completed, plaintiff filed with the register of deeds his statement claiming a lien against Chaffin only. In his petition, filed in September, 1929, he alleged notice of filing the lien was given to the other defendants. After the opening statement of counsel the defendants severally moved for judgment, on the ground that the action had not been brought within ninety days after filing the lien statement, as required by R. S. 58-205. The court sustained the motion as to the defendant Fike, but overruled it as to the other defendants. The motion was good as to the other defendants in so far as the action upon the lien statement was concerned, but plaintiff had alleged a contract for the harvesting of the barley with the defendant Lowe, and as finally amended the. petition alleged that Lowe was the agent of and made the contract on behalf of the defendant Chaffin. Hence the question of the harvester’s lien went out of the case, which proceeded upon plaintiff’s allegations with respect to his contract with the defendants Lowe and Chaffin. Judgment was for plaintiff, and the defendants Lowe and Chaffin have appealed.
On behalf of the appellant Chaffin it was argued there was no evidence to sustain the judgment against him. Chaffin lived in Nebraska. Plaintiff had never met him nor had any communication directly with him. If there could be any recovery against him it would be upon proof that Lowe, in making the contract with plaintiff for harvesting the barley, was the agent of and acting for Chaffin. It is argued there is no such proof. We are unable to find any proof of such agency in the record. The evidence disclosed that Lowe rented from Chaffin the land on which the barley was grown under a parol lease by which it was agreed that Chaffin was to furnish the seed barley, Lowe was to put the crop in, harvest, thresh, and deliver it to market without expense to Chaffin, and Chaffin was to receive as rent for the land and for the seed which he furnished one-half of the barley delivered to market. There is no controversy in the evidence "about the terms of this lease or the conditions under which the barley was grown. It was therefore Lowe’s business to have the barley cut on his own account, and when he made an agreement with plaintiff for the harvesting of the barley he was acting for and on behalf of himself and not as agent for Chaffin. When he bargained with plaintiff for harvesting the barley he did so on his own account — Chaffin’s name was not mentioned. The result is, the judgment against Chaffin must be set aside for lack of evidence to sustain it.
The judgment in favor of plaintiff, and against Lowe stands on a somewhat different footing. It was Lowe’s duty, under his lease with Chaffin, to have the barley cut. He engaged plaintiff to cut it and agreed to pay him. The work was done and Lowe owed plaintiff, but in his answer Lowe pleaded a settlement. He alleged that in June, 1928, he and plaintiff entered into a written agreement by which he was to sell and convey to plaintiff a certain quarter section of land in Colorado for $1,000; that plaintiff paid $150 in cash and delivered to Lowé ten calves at an agreed price of $35 each, making a total credit on the purchase price of the Colorado land of $500. Lowe further alleged that he was delayed in perfecting title to this land so as to convey it to plaintiff, and finally, on June '3, 1929, plaintiff was insisting on having the title to the land, or receiving back payments he had made thereon, and also pay for cutting barley for Lowe. The parties met and had a settlement and agreed that the amount due plaintiff from Lowe was $948.65. This included the $500 plaintiff had paid or received credit for on the Colorado land and the agreed price for the harvesting of the barley, with interest on those items from the time of payment, or from the time the work was done, to the day of settlement. On that date Lowe paid plaintiff $647.06 and executed to plaintiff his promissory note, due in thirty days, for the balance, $301.59. Plaintiff, in his reply, admitted this settlement except he alleged that he accepted Lowe’s note for the balance with the understanding it would be paid when due, and if not, he could still enforce his harvester’s lien. It will be noted that the time for the enforcement of the harvester’s lien had' expired long before the date of this settlement. On the trial both the plaintiff and the defendant Lowe testified to this settlement. It was also testified to by plaintiff’s wife. Lowe admitted having executed the note given in settlement and offered two excuses for not having paid it. One was that at the time of the settlement Miller agreed to take the Colorado land back if Lowe could perfect the title to it, and he testified he did perfect the title in about two weeks after the settlement with the plaintiff' and tried to get him to take the land, and he refused to do so. Since the prior agreement had been abrogated by the settlement, and no new agreement made in writing, Lowe was not, of course, in position to insist on plaintiff taking the land. His other explanation was that he would have made a profit on the land if Miller had taken it; that he had taken the calves in at much more than they were worth, and since Miller had declined to take the land, he thought he was entitled to an offset on the note. But if he wanted any offset on the note the time to have it was when he was making his settlement with plaintiff on June 3, 1929. This action, however, is not a suit on the note. Plaintiff’s testimony was to the effect that if Lowe had paid the note everything would have been all right, but not having paid it when it was due he thought he still had a right to enforce his harvester’s lien against Chaffin, hence this action. As we have heretofore seen, he filed this action too late to enforce his harvester’s lien against anyone, and he never had a cause of action against Chaffin, hence his reasons for ignoring the settlement are not well founded. Having made a settlement with Lowe, and having received pay in part for the harvesting of this crop, and having taken Lowe’s note for the balance of it, his action should have been on the note. Plaintiff did not seek to set aside the settlement, nor did he tender back Lowe’s note. He still held it at the time of the trial of this case. Since, by the pleadings and the evidence respecting this settlement, there is no controversy between the parties there is no purpose in having a new trial on this issue.
The judgment of the court below is reversed, with directions to enter judgment for defendants.
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The opinion of the court was delivered by
Sloan, J.:
This is an action brought to recover on the surety bond of the city clerk of the city of Anthony. The court found for the surety on an item of $770.02. The city appeals.
The city of Anthony is a city of the second class. George E. Corbin was, from the 20th of June, 1922, to and including the 20th day of June, 1924, the duly appointed, qualified, and acting city clerk of such city. The trial court made findings of fact as follows:
“IV. That on July 25, 1922, said defendant, George E. Corbin as principal and the Maryland Casualty Company as surety, executed to said plaintiff, the city of Anthony, Kansas, their certain bond in writing, wherein the said George E. Corbin as principal, and the Maryland Casualty Company as surety, recognized themselves bound to the plaintiff, the city of Anthony, Kansas, in the sum of six thousand dollars ($6,000), the condition of which bond was as follows:
“ ‘That if the said George E. Corbin shall faithfully discharge the duties of this office (office of city clerk) and shall save such city harmless from all loss caused by the neglect of his duty or malfeasance in office or for the willful expenditures of any moneys of such city in violation of law, then this obligation to be void, otherwise to remain in full force and effect.’
“That thereafter the said Maryland Casualty Company did execute and deliver to said plaintiff its certain written document, by the terms of which it continued said bond in force until August 1, 1924.”
“X. While the defendant, George E. Corbin, was city clerk, as a side line he assembled and manufactured radios and sold completed radios. During the time he held the office of city clerk there was. purchased $770.02 worth of radio and electrical supplies in the name of the city of Anthony. Such supplies when purchased could not, and were not intended to be, used by the city. These supplies were ordered in the name of the city of Anthony by the defendant, George E. Corbin, for himself and friends. They were ordered with the knowledge and consent of the city commissioners. The bills for such supplies were rendered to the city of Anthony, and the city commissioners in due course allowed, audited and paid the bills; and the city commissioners knew they were paying for these supplies out of the city’s money. The supplies were shipped to the city of Anthony. They were delivered to the defendant, George E. Corbin, city clerk. They were put and kept in the storehouse of the city building under the charge of the city clerk, and such supplies were the property of the city of Anthony.
“It was agreed between Corbin and the commissioners that the money paid by the city for these supplies was to be paid back to the city of Anthony by the defendant, George E. Corbin. There never was an inventory made or any statement' made on the books of the city with reference to these supplies. No charges were made on the city’s books against George E. Corbin for the supplies, nor was there any money paid to the city by Corbin for the same.
“When the city clerk, George E. Corbin, vacated the office, none of said supplies were left. The amount of radio and other supplies thus bought and paid for by the city and for which Corbin agreed to pay, was of the value of $770.02, no part of which has been paid or received by the city of Anthony; nor has the city clerk, George E. Corbin, paid or accounted for the same.”
The fifth conclusion of law was as follows:
“V. For the amount found due for the radio and electrical supplies, $770.02, the Maryland Casualty Company is not liable as surety, but the defendant, George E. Corbin, is indebted to and owes the city of Anthony for said radio and electrical supplies the sum of $770.02, with interest thereon from the 24th day of April, 1926, at six per cent per annum, for which judgment should be rendered against him.”
This court is definitely committed to the rule that the liability of a surety on an official bond is based upon something done in virtue of the office. (Wilson v. The State, 67 Kan. 44, 72 Pac. 517; Crummer v. Wilson, 119 Kan. 68, 237 Pac. 1035.) It is therefore necessary for us to examine the condition of the bond and the official duties of the bonded. The bond is: “The said George E. Corbin shall faithfully discharge the duties of this office (office of city clerk.)” This is in accordance with the requirements of the statute. (R. S. 14-205 and R. S. 14-1102.) Faithful performance of one’s duty in office requires that he perform all the duties of his office honestly, faithfully and without negligence or corruption.
“The condition of an official bond providing for the faithful discharge by the principal of his official duties is broken by the mere negligence, without corruption, of the principal in the performance of a ministerial duty, which performance does not involve the exercise of discretion.” (46 C. J. 1068.)
“It shall be the duty of the city clerk to examine in detail all bills, accounts and claims against said city, and if found correct sign his name in approval thereof, but if found incorrect he shall refuse to approve or allow the same . . . and the city clerk shall be the general accountant of said city, and shall keep in books regular accounts of all real, personal and mixed property of said city . . . and shall also keep an account with each person, including the officers, who have money transactions with said city, ... It shall also be his duty to examine all warrants and countersign same, after appropriation has been duly made by the said board of commissioners; . . .” <R. S. 14-1506.)
The trial court found that the city clerk purchased radio and electrical supplies in the name of the city of Anthony, which could not and were not intended to be used by the city. The bills for such supplies were rendered to the city, audited, allowed, and warrants issued with the approval of the city clerk. He appropriated the supplies to his own use and made no record of the transaction. Was he faithfully discharging the duties of his office? We think not. He knew the claims were not a lawful charge against the city, and under such circumstances “he shall refuse to approve or allow the same.” Faithful performance required him to withhold his signature from the warrants issued in payment of such illegal claims. If the contention were correct that the merchandise was the property of the city, the clerk was guilty of official misconduct by appropriating it to his own use and failing to make any record of the transaction. These are duties imposed on the clerk by law, the violation of which renders his surety liable to the city. The fact that the city commissioners allowed the claims, with the full knowledge of their purport and-on an agreement that credit would be extended, is no defense. The statute prescribes the duties of the city clerk, and the city commissioners could not excuse his failure to perform his statutory duty.
“Drawing money from the public treasury on a warrant based on an illegal and unauthorized allowance by a board of officials is a breach of the officer’s bond, and renders his sureties liable for the amount so drawn.” (22 R. C. L. 507.)
The statute does provide that the city clerk “shall render such other service from time to time as said board may direct,” (R. S. 14-1506.) The board could, of course, direct the city clerk to perform any duty not inconsistent with the statute, but any order or .agreement made in violation of the statute is void.
The judgment is reversed and the court is directed to .enter judgment in favor of the plaintiff for the sum of $770.02, with interest thereon at the rate of six per cent per annum from April 24. 1926, and costs.
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The opinion of the court was delivered by
Hutchison, J.:
But one question is involved in this appeal and that is, as stated by" the appellant: Does the district court in the trial of a case appealed from a court of a justice of the peace have jurisdiction to hear and determine a motion for a new trial more than five' days after the rendition of the verdict in the district court?
The justice code provides:
“The justice before whom a cause has been tried, on motion of the party aggrieved, at any time within five days after the decision or verdict, shall vacate the decision or verdict and grant a new trial, for the same reasons and upon the same terms and conditions as provided in the code of civil procedure in like causes.” (R. S. 61-831.)
It is the contention of appellant "that" the district court on an appeal from justice court sits as'a jitótióe court and has no power to entertain or consider a motion for a- new trial at a time more than five days after the verdict has been rendered; that no right was gained by either party by the appeal to the district court; that the district court could, on appeal, do what the justice could have done and no more. Appellant cites many cases in support of this contention, but a careful examination of them compels the conclusion that they relate to the question of jurisdiction only. In the case of Dry Goods Co. v. Grear, 76 Kan. 164, 90 Pac. 770, it was said:
“A district court on the trial of an action appealed from an inferior court has such jurisdiction only as had the court from which the appeal was taken.” (Syl. ¶ 1.)
This case had reference to the amount involved in the action. This decision followed that in the case of Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. 631, where the set-off was more than $300. A similar ruling was had in the case of Milling Co. v. Stevens, 94 Kan. 745, 147 Pac. 815, where the element of fraud and misrepresentation was attempted to be injected.
Of course the statute above quoted limits the time within which the justice of the peace can entertain or grant a motion for a new trial, as has been held in Kerner v. Petigo, 25 Kan. 652; Bishop v. Foley, 103 Kan. 190, 173 Pac. 289; and Hallacy v. White, 106 Kan. 504, 188 Pac. 423.
In the case at bar, after the appeal to the district court, a trial was had which resulted in the rendition of a verdict for the plaintiff on April 8,1930. On the 10th of April, 1930, defendant filed a motion for a new trial, which was not heard until June 2, 1930, which was fifty-five days after the verdict had been rendered. In the meantime the plaintiff filed a written objection to the hearing of the motion for a new trial because it had not been heard within the five-day limit prescribed by statute. The court overruled this objection and sustained the motion granting the defendant a new trial, from which the plaintiff appealed.
The hearing and granting a motion for new trial is not a jurisdictional matter, but is merely a matter of procedure. The jurisdiction must always remain as it was in the justice court, but the mode of procedure may differ, and in fact it does differ in many respects in the two courts. The case stands for trial in not to exceed eight days after being docketed in justice court, but any time after ten days on issues of fact in district court. The number of jurors and the method of selecting them is different. Special questions may be asked the jury in one court but not in the other. In one court appeal is taken by filing an appeal bond without notice, in the other by giving notice without any bond. The time of hearing the motion for new trial and granting or refusing to grant it has no element or feature of jurisdiction in it.
In the case of Samuels v. Greenspan, 9 Kan. App. 140, 58 Pac. 482, it was held:
“When a case is taken on appeal from a justice of the peace to the district court, it is to be tried in the latter court according to the rules of practice therein, and not as if it were being tried before a justice of the peace.” (Syl. H 3.)
And in the opinion it was said:
“When a case is taken on appeal to a higher court the appellate court has only the jurisdiction of the court from which the case comes, but the mode of procedure is that of the court in which it is being tried.” (p. 143.)
R. S. 60-3003 requires that a motion for new trial must be filed within three days after the verdict is rendered in the district court. In the trial of the case of Douglass v. Anthony, 45 Kan. 439, 25 Pac. 853, which was a forcible entry and detainer action appealed to the district court from the justice court, the motion for a new trial was filed four days after the rendition of the verdict and it was held that the three-day rule of the district court applied and not the five-day rule of R. S. 61-831 of the justice court.
“Where a motion for a new trial is filed in district court four days after the verdict of the jury was rendered, without any showing being made that the party filing the same was unavoidably prevented from filing it sooner, no ground for the new trial except that of newly discovered evidence can be considered; and this, although the action is one of forcible entry and detainer, commenced in a justice’s court and certified by the justice to the district court.” (Syl. HI.)
We conclude that the time of hearing and determining the motion for a new trial in the district court is not limited to five days as it is in justice court, even in a case appealed from the justice court, and there was no error in this case in the trial court granting a new trial fifty-five days after the verdict was rendered.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
In a motion for rehearing defendant quotes the last paragraph of the opinion of the court, and says:
“Under this order .... it will become the duty of the trial court, if it finds that the building encroaches upon Commercial street so much as an. inch, to order such encroachment abated within a reasonable time. . .
We did not understand the case to deal with a situation in which the encroachment would be found to be so small in extent, and possibly that feature was not given as much attention as it should have received. We did have that possible situation in mind in writing syllabus 3, where it was held that when the governing body of a city determines that an encroachment upon a street should be removed, the court should not review the prudence of that determination unless it is charged and shown to have been arbitrary, capricious, or not made in good faith. The point was briefly discussed in the opinion (132 Kan. 687, 297 Pac. 712). If the encroachment of a permanent building upon a street were not more than an inch’ a court might very well say, as a matter of law, that the determination of the governing body of the city that it be abated was arbitrary and unreasonable; but this could not be said if the encroachment is substantially three feet, as contended by the plaintiff in this action. We are not called upon in this case to determine whether an order to- abate an encroachment of one, two or three inches would be arbitrary and unreasonable because of the slight extent of the encroachment; while one of a greater extent would not be unreasonable. Those matters will be determined if and when presented. In arguing this point defendant mingles with it the argument, heretofore considered, on the question of the estoppel of the city. We held that estoppel does not operate against the plaintiff in this case, and we have no disposition to modify our holding on that question. Other points argued in the motion for rehearing have been fully considered and determined. It is unnecessary to. enlarge upon them here. In view of the point first above discussed, and with the hope of avoiding confusion on tile new trial, the closing part of the opinion is modified so as to read:
“If the finding is that the building does not encroach upon the street, judgment should be for defendant, but if the finding is that the building does encroach upon the street, judgment should be that the encroachment be abated within a reasonable time, unless the extent of the encroachment is so small that the court can say, as a matter of law, that the determination of the governing body of the city that it be abated is arbitrary and unreasonable. It is so ordered.”
The motion for a rehearing is denied.
Sloan, J., not participating.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the court denying a petition for a new trial, which was predicated on newly discovered evidence.
In form the action was to quiet title to real property, but essentially involved the construction of certain deeds. An allied case was here before (Boyer v. Champeny, 125 Kan. 319, 263 Pac. 1066), which was an appeal from a survey made to locate a certain corner. In that case it was sought to have the court construe certain deeds referred to in the opinion, but the court held the surveyor had no jurisdiction to construe ambiguous deeds of conveyance to determine the intention of the parties thereto and if the parties desired such deeds interpreted it should be done in an appropriate action brought therefor. Following the decision of this court in that case this action was brought.
An island in the Arkansas river and a mill property referred to in the former opinion were owned by one Georgianna Nevins, who, in September, 1899, Gonveyed a part thereof to C. S. Griffith, describing the property in controversy as follows:
“Commencing fifty feet south of the dam and headgate in the mill race or cut-off west of island No. 1 in the SEÜ of sec. 36, twp. 31 S., range 2 east; thence running north along said mill race or cut-off to a point within ten (10) rods of the west end of the dam at waterline across the Arkansas river; thence east to the Arkansas river; thence northerly along said river to the dam; then south along said mill race or cut-off to the place of beginning. . . .” (Italics ours.)
This was the first time the ownership of the mill property on the island had been divided. Previous to that time all of it had been owned by one person. Defendants hold under mesne conveyance under this deed. Later Georgianna Nevins conveyed the balance of the island, and through mesne conveyance plaintiffs claim under those deeds. The descriptions in those deeds need not be set out here. The controversy in this case is with respect to what the parties to the deed of September, 1899, meant by the words "the west end of the dam at waterline across the Arkansas river.” Plaintiffs contended that after the dam was built, about 1876, several hundred feet of the south or west end of it had been covered by sand, and that the parties to the deed in question, by the use of the language of the deed of September 4, 1899, referred to a point on the dam at waterline across the Arkansas river as it was then located and which was then visible to the parties. Defendants contended that the south or west end of the dam, as constructed in 1876, was visible to the parties at the time of the deed of September, 1899, and was the point referred to in that deed. The real controversy hinged around those contentions. If plaintiffs’ contentions were found to be correct their land would extend several hundred feet further north than it would if the defendants’ contentions were established. The tract was deemed valuable because of underlying oil. .The action was tried to the court, which made exhaustive findings of fact and conclusions of law, and specifically found that in September, 1899, the south or west end of the dam, as originally constructed in 1876, was plainly observable, and that it was the end of the dam referred to in the deed in question. Plaintiffs appeared to be satisfied with the findings and judgment of the court and did not file the ordinary motion for a new trial. Within a few days before the expiration of a year from the date of the judgment plaintiffs . filed a petition for a new trial on the ground of newly discovered evidence. Such petition is authorized by our statute (R. S. 60-3005), which reads as follows:
“Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, and more than three days after said verdict, report or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after discovery;.on which a summons shall issue, be returnable and served, or publication made, as prescribed in section 78 [R. S. 60-25251. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other eases; but no such petition shall be filed inore than one year after the final judgment was rendered.”
In this petition plaintiffs named certain witnesses and set out in substance the' evidence the witnesses would give. About four months later they filed an amendment to their petition for a new trial, naming additional witnesses and the substance of. the testimony they would give. Hon. Lafayette H. Finney, who had tried the case, having died, and Hon. Wendell P. Ready, who had succeeded him, being disqualified, Hon. George J. Benson, of the thirteenth judicial district, was called in to try the petition for a new trial. The court, having heard the evidence on the petition for a new trial, and having reviewed the premises at the request of plaintiffs, found that the petition for the new trial and the amendment thereto should be denied, and rendered judgment accordingly. The present appeal is from this judgment.
While appellees mention the point that the supplemental petition for a new trial should not be considered because it was filed more than a year after the judgment, they do not press it seriously, for they contend that even the petition and evidence offered in support of that, considered with all of the other evidence in the case, would not justify a new trial. It is our judgment, however, that the sup plemental petition, should not have been considered, for the reason that it was filed too late. It really is an additional and, in a sense, an independent petition for a new trial. The statute specifically provides that the- petition shall not be filed more than a year after the final judgment was rendered, and this court has repeatedly held that a petition filed later than a year after the final judgment is not in time. (Soper v. Medberry, 24 Kan. 128; Monson v. Battelle, 103 Kan. 470, 173 Pac. 927; Avery Co. v. Seeley, 110 Kan. 590, 204 Pac. 731; Bauman v. Hoffman, 125 Kan. 62, 262 Pac. 545.)
The statute above quoted, with other provisions of the code relating to proceedings for a new trial, make it the duty of the court, in passing on a petition for a new trial such as was presented in this case, to consider the pleadings and evidence offered at the trial as well as that offered in support' of the petition for a new trial, and upon the whole case to determine whether the decision given at the trial was wrong. (Haughton v. Bilson, 90 Kan. 360, 133 Pac. 722.) In this case the trial court had the transcript of the evidence received on the trial of the case, and considering that, together with the pleadings and the evidence ’offered in support of the petition for .a new trial, was of the opinion the new trial should not be granted.
Evidence offered in support of a petition for a new trial should be considered on the same basis as though it were offered on a motion for a new trial, the only difference- being that if it is discovered after the three days provided for the filing of a motion for a new trial it may be considered and presented by the court under a petition for a new trial. Naturally the new evidence offered should be material, ordinarily should not be simply cumulative or impeaching, and the party presenting it should make a showing that with reasonable diligence he could not have discovered the evidence in time to have presented it at the trial.
We deem it unnecessary to set out at length either the evidence offered on the original trial or that offered in support of the petition for a new trial. It related largely to the question of whether the south or west end of the dam, as originally constructed, was near the waterline of the river and was visible to the parties at the time the deed in question was made, in September, 1899, and the acts or statements of the parties with respect to possession of the premises conveyed, or their intention with respect to the line established by the conveyance, in so far as statements or acts of that character were attempted to be shown. We have carefully examined the evidence as abstracted and find an abundance to support the judgment of the trial court. This is true even though all of the evidence offered in support of both petitions for a new trial should be considered. The evidence offered in support of the petitions for a new trial was largely cumulative, some of it mildly impeaching, some of it was not very material, and the showing of diligence to obtain the evidence and have it for the trial was decidedly weak.
Taken as a whole, there is no reason to disturb the judgment of the court below, and it is affirmed.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
Nathaniel Bell appeals his jury conviction of one count of premeditated first-degree murder.
Nathaniel Bell, who was 19 years old in April 2003, was planning to leave Wichita in early May to go into the Job Corps, and in the meantime he was staying at the apartment of Adam Lopez. Jose Felix was Lopez’ roommate. Duane Williams and Gregorio Cervantes were friends of Bell, Lopez, and Felix.
Bell slept until 6 p.m. the evening of Wednesday, April 23,2003. About 7 p.m., Bell, Williams, and Cervantes went out to buy Coricidin, a cold remedy. Back at Lopez’ apartment, they took a number of Coricidin tablets, drank beer, and, when they began to feel some effect from the tablets, each snorted a line of cocaine approximately lVz inches long. Bell described the effect as making him feel “disconnected,” but keeping him alert, upbeat, calm, and relaxed.
Lopez did not participate in the drug activities. He went to bed before midnight and slept heavily.
When Felix returned home from work between 1:30 and 2 a.m., Bell, Williams, and Cervantes were sitting in a car in the apartment parking lot drinking beer and talking. Felix joined them. Felix and Bell had a conversation about the fight they had had on Tuesday, and Bell apologized.
Lopez testified that there was friction between Felix and Bell. The specific incident on Tuesday occurred in the bedroom of Lopez’ apartment. Bell said that he had been in the bedroom crying about leaving Wichita, job, friends, and family. Felix came into the room and made a comment that Bell did not like. The two engaged in a physical fight until their friends came into the bedroom and pulled them apart. After the fight had been broken up, Bell expressed the opinion that Felix was ungrateful and said that Felix did not know what he had coming.
After talking in the car about their fight, Felix and Bell seemed to have resolved the issue. They were joking and seemed to be having a good time. Williams, Cervantes, Felix, and Bell went up to the apartment. Felix laid on the couch and dozed off. Bell sat down next to him on the couch. Cervantes sat in the chair, and Williams sat on its arm. The apartment was lit by a strobe light, and there was music playing.
Cervantes got a knife from the kitchen. After removing the child-safety device on his cigarette lighter, he jokingly pretended to stab the sleeping Felix in the leg. They all laughed, and then, when Bell asked for the knife, Cervantes gave it to him.
Later Bell got on top of Felix, straddling him. Bell whispered in Felix’ ear, kissed his neck and chest, and massaged his genitals. Bell testified that his initial intention was to pull a practical joke on Felix by jumping on him and startling him, but instead he began a sexual seduction.
As Williams and Cervantes were talking, Williams heard Felix saying to Bell, “Please don’t do it.” Williams turned and saw Bell with his hands gripping the knife above his head and starting to bring it down to thrust into Felix. Felix’s hands were at his side in a nonthreatening way. Then Williams heard gasps, gurgles, and sounds of Felix trying to breathe. Felix either fell or was pushed by Bell onto the floor. Felix became quiet. Bell changed his clothes, took the keys to Felix’s car and Lopez’s cell phone, pulled a blanket over Felix’s body, and left the apartment.
After leaving the apartment Cervantes and Williams went to the police station to report what they had witnessed. Bell left the apartment and drove around trying to find his friends. When Williams received a call from Bell, Williams got Bell’s location for police. Within a short time, he was arrested.
Although Bell was asked directly about self-defense during a lengthy interview with police the following day, he denied being attacked. At trial, he testified that Felix tried to push him off, reached for a bottle on the floor, and battled for the knife. Bell testified that, after he stabbed Felix, Felix got the knife, got on top of him, and tried to stab him. According to Bell, the second two stab wounds to Felix were inflicted as Bell defended himself: Bell pushed Felix off, stabbing Felix in the process. Felix fell on the floor. When Bell got down to check on Felix, Felix grabbed Bell’s hair and slammed his head on the floor. Felix tried to hit Bell with the bottle, Bell blocked the hit with the knife in his hand so that the force of Felix’s arm drove the knife blade into Felix’s neck.
The crime scene investigator found a kitchen knife with an 8% inch blade under the end table. He found no bottles within Felix’s reach.
Bell first contends that his statement made during police interrogation should have been suppressed as involuntary.
During a videotaped police interrogation, Bell told police that he stabbed Felix, he intended to stab Felix, and his motivation was to stop Felix from coming between himself and Cervantes. Bell alleged that it was involuntary because he was under the influence of alcohol and drugs and he was given only a bottle of water during the hours-long interrogation. The trial court did not agree, and the videotape of Bell’s interview was played for the jury.
At a hearing on the motion to suppress, Bell testified that he was 19 years of age at the time of the interrogation. He testified that he was feeling the effects of drugs and alcohol while he was being interrogated. He had consumed 16 Coricidin tablets, beer, and a 2-inch fine of cocaine before midnight on April 23.
His interview began about 8:30 the morning of April 24. Bell said that during the interview he felt “disordered,” which he described as “[l]ike when you’re there and you know what you’re doing, but you don’t know what you’re doing . . . .” He testified that his vision, off and on, would be blurry. With regard to his hearing, Bell testified that it was “like all the words is running together at the same time for a little bit.” But, when that happened, he would ask to have the question rephrased and then he would understand it. He remembered signing forms at the police station and testified that no threats, coercion, or promises were made to make him sign. When no one was in the room with him, he was “sleepy and dizzy and stuff.”
At the hearing, Bell testified about his activities between the time he stabbed Felix and his arrest at shortly before 6 a.m. on April 24. Bell testified that he changed his clothes before leaving Lopez’ apartment. He drove Felix’s car, and he made calls on Lopez’ cell phone. Bell agreed that he consumed only one “very small fine of cocaine,” but he stated that Coricidin makes the effect of cocaine last longer.
The trial judge announced his reasoning for admitting Bell’s statement immediately before the trial began, stating:
“During the [videotape whenever he was alone in the room, Mr. Bell certainly appeared tired. He laid his head down on the desk for long periods of time, especially when he was left in the room. I never really noticed him doing that when the officers or detectives were present, but anytime he was alone in the room he laid his head down on the desk or table and certainly appeared tired. Whether that was from a combination of alcohol and drugs or physical fatigue or emotional distress or for some other cause is unknown, but what he physically did is obvious on the tape.
‘Whenever the detectives or officers came in the room, whether it was for the oral swabs, for a restroom break or to conduct the interviews or for whatever other times they had contact with Mr. Bell, Mr. Bell was certainly alert, if not energetic. I don’t think he was ever energetic, but certainly he was alert. Anytime the officers and/or detectives were asking him questions, his answers were appropriate and responsive to those questions. His answers provided discreet information, sometimes including Social Security numbers, names, addresses and other specific detailed information. I do find that Mr. Bell, at least during the interview portions, was alert, oriented and responsive to the questions.
“. . . His demeanor present on the tape — and granted, the audio quality of the tape isn’t great, but the demeanor he showed on the tape had a low voice, a quiet non-emotional demeanor and a pattern of slow speech, but I’ll also note that that wasn’t that much different than his demeanor in the courtroom on Friday when he testified [at the hearing on luis motion to suppress.] Mr. Bell talks in a low, soft voice. He talks slowly deliberately, and he sure didn’t show much emotion on Friday and he didn’t show much emotion on the tape.
“Based on the review of the tape and based on the testimony of Detective Fatkin, I find that Mr. Bell was aware and oriented at the time of his interviews, that his answers were appropriate in the interviews, that he was in the custody of the police and physically in interview room number one for a period of time of approximately nine and a half hours but neither from his testimony nor from the tape nor from Detective Fatkiris testimony was there any apparent emotional or physical distress. He was showing no overt or readily apparent effects. He, Mr. Bell, was not showing any overt or apparent effects of alcohol or drugs or both.
“Under the totality of the circumstances that I have to review such motions under, I find that Mr. Bell did understand the Miranda warnings that he was given. I find he understood and appreciated the situation he was in and the gravity of his being given rights in that situation. I find that his waiver of those rights was knowingly, intelligently, voluntarily and freely made. I’ll deny the motion to suppress and I’U allow the admission of the statements pursuant to the Jackson v. Denno hearing. I do find the statement was voluntary and his waiver of the rights was knowingly, intelligently and voluntarily made.”
In reviewing a trial court’s decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances, including the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Swanigan, 279 Kan. 18, Syl. ¶¶ 1, 2, 106 P.3d 39 (2005). This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Mays, 277 Kan. 359, 372, 85 P.3d 1208 (2004). The State bears the burden of proving that a defendant’s confession is voluntary and therefore admissible by a preponderance of the evidence. 277 Kan. at 373.
On appeal, Bell’s principal contention is that his consumption of alcohol and drugs the evening before his interrogation affected the voluntariness of his statement. He concedes that an accused’s use of alcohol and drugs does not per se establish involuntariness. State v. Sweat, 30 Kan. App. 2d 756, 763, 48 P.3d 8 (2002). But he argues that being under the influence of alcohol and drugs, combined with his fatigue, the length of time he was kept in the interrogation room, and the lack of food, all contributed to a totality of circumstances that rendered his statement involuntary.
The trial judge’s factual findings are supported by substantial competent evidence. With regard to his ingestion of alcohol and drugs, Bell testified he had consumed 16 Coricidin tablets, beer, and a 2-inch line of cocaine before midnight on April 23. He was arrested shortly before 6 a.m. on April 24, and his interview began at approximately 8:30 a.m. More than 8 hours elapsed between Bell’s ingesting any alcohol or drugs and his interview. Bell stated his opinion that the effects of cocaine last longer than usual when it is taken with Coricidin, but he did not testily that what lingering effects he felt — feeling somewhat “disordered,” occasional blurred vision, and occasional trouble hearing — curtailed the exercise of his free and independent will. With regard to his occasional hearing difficulty, Bell testified that he simply asked to have a question rephrased and then would understand it. With regard to his feeling “disordered,” examination of the videotape bears out the trial judge’s finding that Bell was alert, oriented, and responsive to the questions and was not showing overt or apparent effects of alcohol and drugs.
As the trial judge noted, the videotape shows Bell resting his head on the table when he was alone in the interrogation room but becoming alert when another person entered the room. Moreover, the trial judge noted that Bell’s demeanor in the interview room was quite similar to his demeanor in the courtroom, which would indicate that it was his customary demeanor in an unfamiliar setting.
The trial judge took into account the length of time Bell was in the interview room in police custody — approximately 9Vz hours— but found no signs of Bell’s suffering emotional or physical distress as a consequence. In this regard, the trial judge considered Bell’s testimony, the videotape, and Detective Fatltin’s testimony. Review of this evidence shows that it is substantial and competent and supports the factual finding.
Based on his factual findings, the trial judge concluded that Bell’s statement was knowing, voluntary, and intelligent in the totality of the circumstances. The factual findings underpinning the trial court’s conclusion are supported by substantial competent evidence. We conclude that the trial court did not err in admitting Bell’s statement into evidence.
Bell next contends that the trial court erred in giving Instruction 11. Instruction 11 states:
“In determining whether the defendant is guilty of murder in the second degree, you should also consider the lesser offense of voluntary manslaughter. Voluntary manslaughter is an intentional lolling done upon a sudden quarrel or in the heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person.
“If you decide the defendant intentionally lolled Jose Felix, but that it was done upon a sudden quarrel or in die heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person, the defendant may be convicted of voluntaiy manslaughter only.”
He concedes that defense counsel did not object to Instruction 11 and contends that a clearly erroneous standard of review applies. No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects, distinctly stating the matter objected to and the grounds for the objection before the jury retires, unless the instruction is clearly erroneous. K.S.A. 2004 Supp. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
The State agrees that the standard of review is clearly erroneous, but adds that Instruction 11 was among the instructions proposed by the defendant. The court reviews an alleged error in the jury instructions by a clearly erroneous standard where the party neither objected nor requested a remedial change. See State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). Since Bell requested Instruction 11, he cannot now argue that it was clearly erroneous. Although that would normally end our inquiry, we do not find Instruction 11 erroneous and feel we should set out our reasons for so finding.
Bell complains that Instruction 11 was erroneous because the jurors were not allowed to consider the mitigating circumstances that would reduce the offense from murder in the first degree to manslaughter. Instruction 11 is PIK Crim. 3d 56.05(B), which, according to the Notes on Use, is to be used when voluntary manslaughter is submitted to the jury as a lesser offense of the crime charged. Bell was charged with first-degree premeditated murder. In addition to the charged offense, the juiy was instructed on murder in the second degree intentional, voluntary manslaughter, and involuntary manslaughter.
Bell mistakenly believes that Instruction 11 presents the same error that required reversal of the conviction in State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003). Graham was charged with attempted first-degree murder. The trial court gave PIK Crim. 3d 56.05(A) rather than (B). 56.05(A) is for use when the information charges voluntary manslaughter. Because there was some evidence in Graham of heat of passion or sudden quarrel, the defendant was entitled to have the jury consider such evidence during its consideration of the elements of attempted second-degree murder. (Emphasis added.) 275 Kan. at 839. But the erroneous instruction “de prived Graham of the opportunity to have the jury consider mitigating circumstances which might have reduced attempted second-degree murder to attempted voluntary manslaughter.” 275 Kan. at 840. Thus, the court concluded that there was a real possibility the jury would have rendered a different verdict with proper instruction.
In the present case, Bell was charged with first-degree murder and the jury was instructed on voluntary manslaughter as a lesser offense. Avoiding the error made by the trial court in Graham, the trial court in the present case correctly gave PIK Crim. 3d 56.05(B) rather than (A).
Bell, however, argues that Instruction 11 is erroneous because, even though it allowed the jury to consider circumstances that might reduce second-degree murder to voluntary manslaughter, it did not allow the jury to consider those circumstances for the purpose of reducing premeditated first-degree murder to a lesser offense. The circumstances Bell has in mind are heat of passion or what he calls “imperfect self-defense,” and the basic premise of his argument is that either heat of passion or an honest but unreasonable reliance on self-defense would reduce first-degree murder to a lesser offense.
With regard to heat of passion, Bell is simply wrong. In State v. Hurt, 278 Kan. 676, 683, 101 P.3d 1249 (2004), the court stated that, although second-degree murder is reduced to voluntary manslaughter if it is committed in the heat of passion, “[t]he same is not true of premeditated first-degree murder. Premeditation and heat of passion are mutually exclusive concepts. In other words, if a murder was premeditated, it cannot have been the result of heat of passion.”
The doctrine of imperfect self-defense is codified in K.S.A. 21-3403(b), which provides that voluntary manslaughter is the intentional killing of a human being committed “upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212, or 21-3213 and amendments thereto.” In State v. Ordway, 261 Kan. 776, 787-88, 934 P.2d 94 (1997), the court explained the provision’s history:
“Legislative history of K.S.A. 21-3403 shows that the definition of voluntary manslaughter was expanded by the addition of subsection (b) in 1992. L.1992, ch. 298, § 5. Until then, the statute defined voluntary manslaughter as an intentional killing upon a sudden quarrel or in the heat of passion. Notes on proposed criminal code revisions were attached to the minutes of the Senate Judiciary Committee from March 22,1992, which contained the following comments about subsection (b) of 21-3403:
‘(b) “Imperfect right to self-defense” manslaughter
‘This new subsection covers intentional killings that result from an unreasonable but honest belief that deadly force was justified in self-defense. In essence, the defendant meets the subjective, but not the objective, test for self-defense. This so-called “imperfect right to self-defense” is recognized in various forms. Kansas apparently recognizes it for unintentional killings under involuntary manslaughter. State v. Gregory, 218 Kan. 180[, 542 P.2d 1051] (1975); State v. Warren, 5 Kan. App. 2d 754[, 624 P.2d 476, rev. denied 229 Kan. 671] (1981) State v. Meyers, 245 Kan. 471[, 781 P.2d 700] (1989). The Model Penal Code also follows this approach. Some states, e.g. Illinois, recognize this partial defense for intentional killings. See, LaFave, Criminal Law, pp. 665-666 (1986).’ ”
Thus, the jury was properly instructed that intentional second-degree murder might be reduced to voluntaiy manslaughter if committed with an honest but unreasonable belief that circumstances justified the use of deadly force in self-defense. But premeditated first-degree murder would not be reduced by an honest but unreasonable reliance on self-defense because, as with premeditation and heat of passion, the two are mutually exclusive concepts. If a murder were committed with premeditation, it would not be the result of an unreasonable but honest belief that circumstances justified deadly force. Premeditation requires reason; imperfect self-defense requires the absence of reason.
We conclude that Instruction 11 is not erroneous.
Finally, Bell contends that he was denied a fair trial by the prosecutor’s misstatements of fact and law.
In State v. Tosh, 278 Kan. 83, Syl. ¶¶ 1, 2, 91 P.3d 1204 (2004), the court described the analysis applicable to questions of prosecutorial misconduct;
“A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The second step is a particularized harmlessness inquiry for prosecutorial misconduct cases.”
“In the second step of the two-step analysis for alleged prosecutorial misconduct tihe appellate court considers three factors to determine if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.”
Bell complains that the prosecutor misstated a fact relevant to his theory of self-defense by stating in closing argument: “Did anybody tell you that there was a beer bottle, no, nobody did.” Defense counsel ended closing argument with the following remarks:
“It’s uncontroverted Nate stabbed Jose on the 24th of April. It’s the reasons why. Again, ladies and gentlemen, this is a young person that had never been in circumstances like this before, had never been in a fight before, and this behavior happened under circumstances of drugs, alcohol and in an environment which is affecting his ability to conceive what’s going on. Under his perception of what happened, he felt that his life was in danger, that he was going to be struck and that Jose had his hand around his neck and a beer bottle in his hand ready to strike him. That’s what he saw.”
In rebuttal, the prosecutor noted that during more than 9 hours in police custody for interrogation Bell said nothing about a beer bottle. The prosecutor also noted that the first law enforcement officer on the scene testified that he saw no beer bottles within arm’s reach of the decedent. Then, after reviewing the taped statements of Cervantes and Williams and the testimony of Lopez, the prosecutor stated: “Did anybody tell you that there was a beer bottle, no, nobody did.”
In arguing that the prosecutor misstated the evidence, Bell directs the court’s attention to Cervantes’ trial testimony. Cervantes testified that he saw a beer bottle in Felix’s hand:
“Q. What did Nate tell you after you saw him with the knife in his hand?
“A. He told me that he was trying to protect himself because Jose tried to hit him with a bottle.
“Q. Did you see a bottle in Jose’s hand as he lay on the floor?
“A. Yes.
“Q. And that bottle would still be there because you didn’t move it. Right?
"A. Yes.
“Q. And that bottle would be in pictures law enforcement took. Correct?
“A. Yes.”
The State’s position seems to be that Cervantes’ testimony was not credible and, for that reason, points out that none of the pictures taken by officers at the scene show a bottle in Felix’s hand. Examination of photographs in the record on appeal confirm the State’s assertion.
The State correctly points out that the part of closing argument complained of by Bell was preceded by the prosecutor’s referring to the taped statements. given by Cervantes and Williams rather than to trial testimony. But the statement at issue seems to refer to testimony given before the jury — “Did anybody tell you that there was a beer bottle, no, nobody did.” (Emphasis added.) If the prosecutor’s statement was not limited to- the taped statements of Cervantes and Williams, and it does not appear to be so limited, it misstated the evidence. Even if, as the State urges, Cervantes’ trial testimony about a bottle in Felix’s hand was questionably credible, the prosecutor cannot misrepresent that testimony without exceeding the wide latitude allowed in discussing the evidence.
Thus, we must consider the following three factors to determine if the prosecutorial misconduct so prejudiced the juiy against the defendant that a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Here, Bell does not even assert that, the prosecutor’s statement was gross and flagrant. Nor does Bell contend that it shows ill will on the prosecutor’s part. Bell’s concern is that the jury was “deflected” from a proper consideration of the applicable facts. With the evidence against Bell being direct and overwhelming, the misstatement would likely have little weight in the jurors’ minds. We conclude the misstatement of fact did not so prejudice Bell that he should be granted a new trial.
Also in the rebuttal portion of closing argument, the prosecutor made the following remarks about Bell’s voluntary intoxication: “Is this intoxication to the effect that he can’t think about what’s going on. Is it so great that it overcame his ability to think. ” (Emphasis added.) Bell contends that the second sentence misstates the law regarding voluntary intoxication.
K.S.A. 21-3208(2) provides:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
The jury was instructed, according to PIK Crim. 3d 54.12-A, that “[v]oluntary intoxication may be a defense to the charge of first degree murder, where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary state of mind of premeditation and the intent to kill.” The jury was further instructed, according to PIK Crim. 3d 54.12-A-1 that voluntary intoxication may be a defense to the charges of second-degree murder and voluntary manslaughter “where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent to kill.”
In support of his argument that the prosecutor’s remark in closing argument misstated the law, Bell cites State v. Walker, 252 Kan. 279, 296-97, 845 P.2d 1 (1993), where an instruction, rather than a remark, on voluntary intoxication was at issue. The complained-of instruction in Walker was given in addition to the pattern instruction. It stated in part:
“[I]n the case of certain crimes called specific intent crimes, if the jury believes from all the facts and circumstances that defendant was intoxicated, and that tire intoxication was to such a degree that defendant’s mental faculties were impaired, and that such impairment was to such an extent that the defendant was incapable of forming the specific intent which is an element of the crime, that is, if the defendant ‘was utterly devoid of consciousness or awareness’ of what he was doing then the jury may take that fact into consideration in determining whether or not such intent or state of mind existed.” 252 Kan. at 296.
The court disapproved of the italicized phrase, but concluded “that no reversible error has been shown.” 252 Kan. at 297.
Bell urges the court to find that the prosecutor’s questioning in closing argument whether his intoxication was “so great that it overcame his ability to think” is comparable to the Walker instruction and to conclude that there is reversible error in the present case. However, there was no reversible error in Walker, hence, even if we disapproved the remark and determined that it is comparable to the instruction, Walker is not authority for finding reversible error in the present case.
In the two-step analysis applied to allegations of prosecutorial misconduct, we first decide whether the prosecutor’s remark was outside the wide latitude allowed. The defendant’s intoxication being “so great that it overcame his ability to think” is not an accurate statement of the law of voluntary intoxication, which is specific to the inability to form the necessary state of mind or intent. A misstatement of the law by a prosecutor lies outside the latitude allowed. In State v. Holmes, 272 Kan. 491, 499-500, 33 P.3d 856 (2001), the prosecutor’s deliberate misstatement of the law was considered to be outside permissible latitude.
In the second step, “[e]ach case must be scrutinized on its particular facts to determine whether prosecutorial misconduct is harmless error or plain error when viewed in the light of the trial record as a whole.” State v. McCorkendale, 267 Kan. 263, Syl. ¶ 9, 979 P.2d 1239 (1999). In McCorkendale, the court considered the following remarks on intoxication, which were made by the prosecutor in closing argument: “[In order for you, the jurors, to find that voluntary intoxication is] a defense to first degree murder, you have to think that he was totally out of it because he was drinking, he wasn’t aware of what was going on in his surroundings.” 267 Kan. at 284. As in the present case, there was no contention in McCorkendale “that the trial court improperly instructed the juiy on voluntary intoxication. The court’s instructions provided the correct legal standard for the jury and constituted a correct statement of Kansas law.” 267 Kan. at 284. Even so, the defendant argued that the State’s argument on the law of voluntary intoxication required reversal. The court stated:
“[I]n order to credit the defendant’s argument, we must assume that the jury did not follow the instructions given by the trial court. There is simply no basis in the record to establish that the juiy in this case did not follow the trial court’s instructions. While we agree that the remarks of the State were an incorrect statement of the law on involuntary intoxication and constitute error, we conclude beyond a reasonable doubt that such remarks had little, if any, likelihood of changing the result of tile trial.” 267 Kan. at 284.
In the present case, too, the juiy was correctly instructed so that there is little, if any, likelihood that the prosecutor’s incorrect statement about intoxication had any effect on the result of the trial. We conclude that McCorkendale is controlling and, although the remarks were improper, they did not deny Bell a fair trial.
Affirmed.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Nuss, J.:
Michael Mattox was convicted by a jury of one count of aiding and abetting unintentional second-degree murder and one count of aiding and abetting criminal discharge of a firearm. The Court of Appeals reversed in part, holding that Mattox’s statements made to three Topeka Police Department detectives and evidence obtained as a result of those statements should have been suppressed. It affirmed the district court on all other issues, however, including the admission into evidence of Mattox’s statements made to Douglas County Sheriff s Office booking officer Mark Unruh. State v. Mattox, No. 89,547, unpublished opinion filed April 2, 2004.
Both Mattox and the State filed petitions for review, which we granted solely on the suppression issues. Our jurisdiction is pursuant to K.S.A. 60-2101(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in admitting Mattox’s statements to Douglas County Sheriff s Office booking officer Mark Unruh? No.
2. Did the district court err in admitting Mattox’s statements to Topeka Police Department detectives and Mattox’s handgun obtained as a result of those statements? No.
3. Did an independent basis for admitting Mattox’s handgun exist under United States v. Patane, 542 U.S. 630, 159 L. Ed. 2d 667, 124 S. Ct. 2620 (2004)? Moot.
Accordingly, we affirm in part and reverse in part the Court of Appeals and affirm the district court.
FACTS
Officer Matthew Ford of the Topeka Police Department was on duty October 11, 2001, when he responded to the 1100 block of Carnahan regarding reported gunshots. When he arrived at 3:21 a.m., he found a gray car stopped on the median; the car was still running and music was playing. John Lane was slumped over in the driver s seat with two gunshot wounds to his head. Lane was taken by ambulance to a hospital but died shortly thereafter.
Although several people heard four or five rapid gunshots, the police found no eyewitnesses to the shooting. Four .380 caliber shell casings were found at the scene. Their locations were consistent with shots fired from a moving vehicle.
Five days after the Lane shooting, on October 16,2001, Officers Joshua Guile and Matt Sama of the Lawrence Police Department were dispatched to a Lawrence McDonald’s restaurant regarding a possible robbery at a nearby Kwik Shop. Sarna searched the coat of the suspect, Michael Mattox, and found an empty magazine for a .380 caliber pistol in Mattox’s right front pocket, as well as quite a bit of cash. Mattox was arrested for criminal trespass and transported by Guile to the Lawrence Investigation Center for an interview. On the way to the Center, Mattox made statements that he was afraid for his life; he thought people were coming after him and thought the officers were going to hurt him.
At 4:30 p.m. at the Center’s interview room, Guile read Mattox his Miranda rights and after asking Mattox if he understood his rights after reading them all, Mattox answered, “Yes.” Guile asked if Mattox was waiving his rights and if he would speak to the Lawrence police officers. Mattox said he wanted to speak with his lawyer, so Guile did not ask any further questions. Mattox was then taken to the county jail.
At 5:53 p.m. Mark Unruh, a corrections officer with the Douglas County Sheriff s Office, began booking Mattox for criminal trespass at the county jail. About 2 minutes into the booking, Mattox interrupted to say he had some information to tell Unruh. Unruh told him there was nothing Unruh could do with the information and he needed to be booked in. Several minutes later Mattox again interrupted to say, “I have some information I need to tell you.” Unruh reexplained he merely booked people and there was nothing he could do with the information. Mattox repeated five or six times during the booking process that he had information he wanted to tell, and Unruh continued to tell Mattox he was not the person to receive such information. At one point Mattox became angry because Unruh would not listen to him.
At 7:30 p.m., after Mattox had been processed and showered, he approached Unruh and asked, “Are you ready to listen to me yet?” After moving to a juvenile processing room at Mattox’s request for privacy, Unruh asked, “OK, what have you got to tell me?”
Mattox began by saying, “I have some information on a couple of murders.” Unruh replied, “Okay, what about them?” Mattox first told Unruh about a murder at a bank. Unruh explained that all he could do with the information, as a corrections officer, was pass the information on to detectives. Unruh also began writing it down, telling Mattox he would pass the information on to detectives. Mattox did not object. Mattox then talked about his brother’s murder for 5 to 10 minutes.
As Mattox talked, Unruh did not interrupt or question, except to make sure he had the names correct.
Unruh then went over his notes with Mattox to make sure everything was correct. After Unruh checked with Detective Massey for guidance, he began to type the information in a report to be placed in Massey’s box. When informed of Massey s response, Mattox had no objection to this procedure. Unruh also gave Mattox a pencil and paper and suggested he write what he had told Unruh in his own words, a recitation that would be submitted with Unruh’s report. While Unruh typed, Mattox wrote.
At 9:21 p.m., after Unruh finished his report on the two murders, he showed it to Mattox for accuracy. When Unruh asked if he had forgotten anything in his report, Mattox replied, “Well, I have some more information on another murder.” Unruh then said, “Okay, tell me about it.” Mattox then began to provide information on the Lane murder.
Mattox stated that around 3 a.m. on October 13, 2001, he was riding in a car driven by Robert Gigger behind the Pine Ridge Apartments in Topeka. When another car pulled up next to them on the driver’s side, Gigger was agitated because the car had been swerving behind them. Gigger told Mattox to get the gun, which Mattox retrieved from the glove compartment. Gigger then took the .380 handgun registered to Mattox and shot the victim, John Lane. Mattox repeatedly said that he was not the shooter. He told Unruh that after the shooting he and Gigger went to Mikey Watson s house and then home where they saw the murder on the news.
As Mattox talked, Unruh interrupted only to get times and locations correct. When Mattox was done talking about the Lane murder, Unruh advised Deputy Robertson who told him Topeka police would be called when Unruh was done. Unruh then typed the Lane murder information into his report and, when completed, read it to Mattox. Mattox’s only comment was that he had not shot Lane. While Unruh had typed, Mattox had continued working on his statement, even asking for an eraser and another pencil at one point.
As Unruh was finishing his report, his shift ended, so he took Mattox to a holding cell, where Mattox continued to write. Unruh then went off duty and left the building around midnight.
Topeka Police Department Detectives Brian Hill, Gary Robinson, and Richard Voile were called into their police station at 10:30 that same night. They were previously aware that Lane had been shot while driving a car on Deer Creek Parkway and that .380 shell casings had been found in the area. They were now told that Mattox had been arrested in Lawrence for criminal trespass and was giving information on the Lane homicide. The detectives were told that according to Mattox, Robert Gigger had committed the crime.
The three detectives went to the Douglas County jail, arriving at 12:55 a.m. on October 17. They set up a video camera in the interview room, and Mattox was brought in. The detectives were aware that Mattox had written out a statement and saw he was holding a paper when he came in. They introduced themselves and told Mattox they were investigating the John Lane murder. None of the officers read Mattox his Miranda rights.
Several minutes into the interview, the following exchange took place:
“Detective: You already told these guys [Douglas County] kind of what happened, that you guys were just driving down the street. Were you driving the car?
“Mattox: No, I wasn’t driving the car.
“Detective: How many people was in the car?
“Mattox: You guys are trying to trick me. It was only two but —
“Detective: You and Robert?
“Mattox: I know I need to talk to a lawyer, because I know anything I say y’all are going to twist it. But I don’t know, I don’t know if the gangs are setting me up. I don’t know, I need to collect my thoughts. You all won’t let me make a phone call. There’s people out there that I gotta
“Detective: Here’s the thing. You know you have all your rights in place, okay? “Mattox: HuhP
“Detective: You have all your rigjits.
“Mattox: What’s all my right?
“Detective: (Over each other) Just like the TV show.
“Mattox: (Over each other) So I’m not under arrest for it? Right.” (Emphasis added.)
The videotaped interview lasted from approximately 1 a.m. until 2:30 a.m. Over its course, Mattox told the detectives that he and Gigger were riding in the car, going to a friend’s house to smoke some marijuana. A car pulled up behind them, driving erratically and tailgating. They thought it might be other gang members wishing to do them harm. Gigger said, “There’s a car coming up real fast.” Mattox took the gun in his hand, and the car passed. Mattox saw it was not a gang member, but Gigger had taken the gun out of Mattox’s hand. Mattox asked, “Should we shoot him for driving like that?” Gigger then repeatedly shot through the window and hit John Lane. Mattox never intended that Gigger would shoot the other driver.
During the interview, Mattox stated that he had given Gigger the gun the evening of October 15. After much prodding, Mattox admitted that the gun was in a dumpster behind a strip mall in Lawrence.
Near the end of the interview, at the request of Detective Robinson, Mattox signed the handwritten statement which he had brought with him. His statement, which tracks much of his videotaped interview, is as follows:
“Me (Michael) and Robert Gigger was going to chill at Mikey Watkins house and smoke weed when we was driving down 21st street we made a left on a street I can’t remember, it is right behind Pine Ridge where John Lane was kill on. John Lane was behind us but he was driving real cra2y but I did’nt realize until now that Robert was going about 30 miles an hour the speed limit and John Lane wanted to go faster so I think he wanted to pass us. But at the time it was happening I thought that he might be trying to shoot at us because Robert is a gang member and has got shoot at on some occasions so he made me think that someone was about to shoot at us in the car. Robert told me to get gun so I got the gun out of the glove box and pulled down the back seat [unreadable] and reached an got the clip out of the trunk. Eventually John Lane pass us and I was about to place everything back where I got it from while I was doing I made a comment that he deserves to be shoot at for driving behind like he was going to shoot us, but I didn’t mean it. So when I said that Robert got hype up and took the gun and cock then shot at him about 5 or 6 times and kill him. When I saw that I couldn’t explain how I felt. Then we went to Mikey house (not sure of address around SE 8th.) I was trying to make it seem like everything was cool and that he could trust me not to tell.
“[Signed] Michael Mattox 10/17/01”
In trying to locate the gun after the interview, the officers searched three or four dumpsters at several strip malls but were unsuccessful. With Mattox’s physical assistance, at 4:50 a.m. they found in a dumpster a Smith and Wesson .380 automatic handgun that had been purchased by Mattox. Later that day, the officers executed a search warrant on Gigger’s house where he was arrested and charged with the murder of John Lane. The gun was later determined to be a match for one of the bullets recovered from Lane’s body and for the four shell casings found at the scene. Sometime after Gigger claimed that both he and Mattox had shot at Lane, Mattox was arrested for his involvement in the episode.
Mattox eventually filed a motion to suppress, and the district court conducted a hearing on January 30, 2002. Booking officer Unruh, Lawrence police officers Sarna and Guile, and Topeka detectives Hill, Voile, and Robinson were the only witnesses. On February 14, 2002, the court denied Mattox’s motion concerning his statements to Unruh, both oral and written (with signature redacted), holding that Mattox had waived his right to counsel with Unruh. Based upon a determination that Mattox had clearly reinvoked his right to counsel during his videotaped interview with the Topeka detectives, however, the court granted the part of the motion concerning that interview, Mattox’s signature on the handwritten statement, and the subsequently-found handgun.
On March 22, 2002, the court granted the State’s motion for reconsideration, holding that Mattox had not clearly reinvoked his right to counsel during the interview with the Topeka detectives. Accordingly, Mattox’s videotaped interview, his signature on his handwritten statement, and the handgun were now admissible.
The State introduced information from the statements into evidence at the jury trial, as well as the videotaped interview and the handgun. The jury convicted Mattox of aiding and abetting reckless second-degree murder and criminal discharge of a firearm. Based upon Mattox’s criminal history classification, the court sentenced him to a controlling 176-month prison sentence.
ANALYSIS
Standard of Review
In reviewing a trial court decision regarding the suppression of an accused’s statements and evidence obtained as a result of those statements, we review the factual underpinnings of the decision by a substantial competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment. See State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003). We do not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
Issue One: Did the district court err in admitting Mattox’s statements to Douglas County Sheriff s Office hooking officer Mark Unruh?
Mattox argues that the district court erred in admitting his statements to Unruh because he had earlier invoked his right to counsel when speaking with Officer Guile. Specifically, he contends that the district court failed to sufficiently analyze whether he had voluntarily waived his right. The State responds that Mattox’s statements are admissible because he reinitiated contact with law enforcement, i.e., Unruh, and then voluntarily waived his rights to counsel.
Recently, in Walker, 276 Kan. 939, this court addressed the law relating to custodial interrogations after a defendant’s assertion of his or her right to counsel:
“The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1601 (1966). . . .
“Once tire right to counsel has been invoked, the courts impose a ‘relatively rigid requirement that interrogation must cease . . . .’[Citation omitted.] Questioning can be resumed only after a lawyer has been made available or tire suspect reinitiates conversation. Edwards v. Arizona, 451 U.S. at 482, 484-85; Henry, 273 Kan. at 613. The Edwards rule provides a ‘second layer of prophylaxis for the Miranda right to counsel’ [citation omitted] which is ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.’ (Michigan v. Harvey, 494 U.S. 344, 350, 108 L. Ed. 2d 293, 110 S. Ct. 1176 [1990].) See Henry, 273 Kan. at 613.” 276 Kan. at 944-46.
We made clear in Walker that our analysis of whether custodial interrogation is appropriate after a suspect has invoiced his or her right to counsel is two-fold:
“In determining whether an accused has waived a previously asserted constitutional right, the court must . . . determine whether the accused (1) initiated further discussions with police and (2) knowingly and intelligently waived the previously asserted right. Smith v. Illinois, 469 U.S. 91, 95, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984). The prosecution has the burden to show that subsequent events indicated a waiver of a previously asserted right and that the waiver was knowing, voluntary, and intelligent under the totality of the circumstances. Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983); State v. Matson, 260 Kan. 366, 374, 921 P.2d 790 (1996). A valid waiver of a previously asserted right ‘cannot be established by showing only that [the suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights.’ Edwards, 451 U.S. at 484. Further, the accused’s statements must evince ‘a willingness and a desire for a generalized discussion about the investigation’ and ‘not merely [be] a necessary inquiry arising out of tire incidents of the custodial relationship.’ Bradshaw, 462 U.S. at 1045-46.” State v. Walker, 276 Kan. at 946-47.
In a 16-page Memorandum and Order dated February 14,2002, the district court performed this two-step analysis. It “found and concluded” that Mattox initiated the communication and voluntarily and validly waived his right to remain silent and his right to counsel; as a result, Mattox’s oral statements to Unruh and his written statement were admissible. The Court of Appeals affirmed.
Substantial competent evidence supports the district court’s finding that Mattox initiated the communication. Unruh testified at the suppression hearing that during the booking, Mattox was persistent in trying to talk to him about “some information,” i.e., he broached the subject five to six times. At one point, Mattox got angry because Unruh would not listen. After being repeatedly put off because Unruh said he was not the person to receive such information, Mattox again approached Unruh after Mattox’s shower and asked, “Are you ready to listen to me yet?” Unruh testified that Mattox then asked to go to a private room and there began to talk about three different murders, including his own brother’s.
With a substantiated finding that Mattox initiated the communication, our next inquiry is
“ whether a vaiid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.’ Edwards v. Arizona, 451 U.S. at 486, n. 9. As we have said many times before, this determination depends upon “the particular facts and circumstances surrounding [the] case, including the background, -experience, and conduct of the accused.” ’ [Citations omitted.]” Oregon v. Bradshaw; 462 U.S. 1039, 1046, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983).
But first, an examination of our standard of review of the Miranda rights waiver issue is in order. This court recently reaffirmed that after we look to see whether the trial court’s findings regarding confessions are supported by substantial competent evidence, our subsequent determination of whether the confession was voluntary — based upon that totality of factual circumstances — is a legal conclusion requiring de novo review. State v. Swanigan, 279 Kan. 18, 31, 106 P.3d 39 (2005); see Arizona v. Fulminante, 499 U.S. 279, 287, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); State v. Makthepharak, 276 Kan. 563, 567, 78 P.3d 412 (2003); State v. Vandiver, 257 Kan. 53, 57, 891 P.2d 350 (1995).
By contrast, we have held that the often-related question of whether a waiver of Miranda rights was knowing, voluntary, and intelligent — also based upon the totality of factual circumstances — is a question of fact. See State v. Mays, 277 Kan. 359, 372-73, 85 P.3d 1208 (2004); Makthepharak, 276 Kan. at 567. Accordingly, our review has been limited to determining whether substantial competent evidence exists to support the trial court’s findings of voluntary, knowing, and intelligent waiver. Makthepharak, 276 Kan. at 567.
We observe, however, that all the federal circuit courts of appeal regard the voluntariness of a waiver of Miranda rights as an issue of law. As stated by the Seventh Circuit in United States v. Mills, 122 F.3d 346, 349 (7th Cir. 1997):
“On the issue before us today, the voluntariness of the waiver of Miranda rights, the other circuits also are of one mind and employ the same paradigm as they do for assessing the voluntariness of a defendant’s statement. We stand alone in using a deferential standard of review with respect to the ultimate issue of voluntariness.”
The Seventh Circuit then concluded:
“We believe that Ornelas [v. United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996)] makes it clear that we ought to join the rest of the Country in holding that the ultimate issue of the voluntariness of a waiver of Miranda rights ought to be reviewed de novo by an appellate court. Like the issue of the voluntariness of a defendant’s statement, the voluntariness of a Miranda waiver requires assessment of the historical facts of the case in light of a prevailing legal standard. Like the issue ... in Ornelas, independent review is necessary to ensure uniformity of decision and the predictability and ease of administration that follow from uniformity of decision. Nevertheless, as the Supreme Court did in Ornelas ..., we emphasize that the findings of historical fact and the reasonable inferences that the trier of fact draws from those findings are matters on which we owe deference.” 122 F.3d at 350.
We agree with the federal circuit courts of appeal. We acknowledge that the judicial determinations of the two issues usually are separate, i.e., one can make a voluntary waiver of his or her Miranda rights but still produce an involuntary confession. See Baskin v. Clark, 956 F.2d 142, 145 (7th Cir. 1992). We also acknowledge, however, that when dealing with an implied — as opposed to an explicit — waiver, the issue of whether the defendant waived his or her Miranda rights can be virtually indistinguishable from the issue of whether the defendant’s statement was voluntary. See United States v. Mills, 122 F.3d 346, 351 (7th Cir. 1997). It is therefore particularly appropriate, under these circumstances, that the same standard of review be applied to both issues. We so clarify our language in cases such as Mays and Makthepharak.
We reject Mattox’s allegation that the district court failed to sufficiently analyze whether he had voluntarily waived his Miranda-based rights to silence and to counsel. Clearly, in its determination the court considered “the necessary fact that the accused, not the police, reopened the dialogue with authorities” (see Edwards v. Arizona, 451 U.S. 477) and found — based upon Unruh’s testimony — that Mattox insisted on telling his story to Unruh about three different murders. The court also found that Unruh’s statements were not evocative, i.e., he primarily allowed Mattox to unburden himself of Mattox’s own accord. The court further found that Mattox was properly advised of his Miranda rights; that he understood them; that Mattox was 22 years old; and that he had 2 years of college education. The district court additionally found no evidence of odor of alcohol or drugs, i.e., that Mattox was not under their influence.
These findings are supported by substantial competent evidence. Guile testified that he read the Miranda warnings and that Mattox told him he understood them. He also testified that Mattox invoked his Miranda right to counsel, signifying Mattox indeed understood them, so Guile stopped his questioning. Furthermore, Mattox’s age and education level were contained in the court file.
Additionally, Unruh testified at the suppression hearing that he let Mattox talk; he interrupted only to malee sure he understood names, times, and locations. Unruh explained to Mattox that he was taking notes so he could relay the murder information to Detective Massey, an investigating detective, and that Mattox did not object. In short, Mattox knew that the information would be forwarded to additional law enforcement personnel for action, and he apparendy approved. When Mattox was finished, Unruh went over the information to make sure everything was correct, and Mattox had no objection to this procedure either. Nor did Mattox ask for corrections, additions, or deletions, except to repeat that he had not shot Lane.
Unruh also testified that while he was writing the report, he gave Mattox a pencil and a piece of paper and told him he could write his story down in his own words and that Mattox’s statement would be attached to his report for the detectives. Accordingly, Mattox knew that his own words also would be forwarded to other law enforcement personnel for possible action. Mattox wrote and even asked for an eraser and another pencil to complete his task. Mattox was writing the entire time Unruh was typing his report and after Unruh took Mattox to a holding cell, Mattox continued to write, apparently on his own, because Unruh by then had left the building.
We also observe there is no evidence in the record on appeal of any drug or alcohol odor on Mattox, no evidence indicating he was under the influence, and no evidence of threats, promises, or inducements for Mattox to talk.
The district court concluded that not only were Mattox’s Miranda rights validly waived but that he also gave a knowing and voluntaiy confession.
We agree. The district court’s substantiated findings permit us to independently conclude that, under the totality of the circumstances, Mattox’s Miranda rights were knowingly and voluntarily waived, and his two confessions — oral and written — were voluntarily and knowingly given. Cf. United States v. Mills, 122 F.3d 346, 351 (7th Cir. 1997) (the two inquiries can be virtually indistinguishable).
State v. William, 248 Kan. 389, 807 P.2d 1292 (1991), also contains some parallels. There, this court held that although the defendant had court-appointed counsel after his first court appearance, he waived this Sixth Amendment right when he initiated contact with an employee at the sheriff s department and the employee “did not attempt to elicit confessional statements,” but primarily listened to William’s self-incriminating statements and asked a few clarifying questions. This court also held the trial court did not err when it concluded that the statements were voluntarily made and the statements were admitted into evidence. 248 Kan. at 413-14.
Issue Two: Did the district court err in admitting Mattox’s statements to the Topeka Police Department detectives and Mattox’s handgun obtained as a result of those statements?
Mattox argues that even a waiver of his Miranda rights with Unruh does not allow the admission of his videotaped statement and his handgun. He essentially argues an additional Miranda warning should have been given by the Topeka detectives or a determination made by them that Mattox fully understood his rights. The State responds that Mattox’s Miranda waiver continues unless and until he reinvokes his rights.
The district court, in its five-page order of reconsideration of March 22, 2002, held that Mattox had not made a clear request for legal counsel during the interview with the Topeka detectives, citing Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), and State v. Morris, 255 Kan. 964, 880 P.2d 1244 (1994). Consequently, it held in relevant part:
“As previously determined, this court found the second interview was custodial. The defendant after he had been previously Mirandized [by Officer Guile] voluntarily waived his right to remain silent.
“Therefore, the results of the second interview which was taped, should now be admissible. That would include the tape itself and his second confession, also the signed written statement and the gun should not now be required to be suppressed.
“The Topeka Police interview at Lawrence I.C. was found to be a continuation of defendant’s initiation of his confession with Officer Mark Unruh, after he had been Mirandized earlier. The interview continued at 1:00 A.M. after defendant had been talking to Officer Unruh and defendant completed his written statement by signing it before the Topeka Detectives.”
Subsequent Miranda warning
Inherent in the court’s holding is a determination that given Mattox’s waiver with Unruh of his Miranda rights to counsel and silence, there was no need for a subsequent Miranda warning by the Topeka detectives. The Court of Appeals held:
“[T]he defendant’s voluntary discussion with Unruh about the Lane shooting does not allow law enforcement officers to presume that the defendant has categorically waived a previously asserted right to counsel. If a person in custody who has invoked the right to counsel initiates a general conversation concerning the charged offenses with law enforcement officers, the State bears the burden of proving that the conversation was intended to be a knowing and intelligent waiver of the previously asserted right before statements made during a subsequent interrogation may be admitted. [Citations omitted.] In this case, the State has made no such showing.
“The Topeka detectives, knowing that the defendant was in custody, made no attempt to ascertain whether the defendant was aware of his rights, let alone determine if the defendant wished to waive his previously invoked right to counsel. Instead, the detectives attempted to undermine the defendant’s obvious reluctance to talk with the detectives by suggesting drat the defendant’s rights were not in jeopardy because he was merely a witness, not a suspect. . . .
“. . . It is clear from the videotaped interview with the Topeka detectives that the defendant’s statements about the Lane shooting were not freely offered but were the product of the detectives’ interrogation. As the State cannot demonstrate a knowing and intelligent waiver of the defendant’s previously asserted right to counsel, these statements were admitted in violation of the defendant’s constitutional rights.” Mattox, No. 89,547, Slip op. at 6-7.
We begin our analysis by observing that one court has stated: “[T]here is no requirement that an accused be continually reminded of his rights once he has intelligently waived them. [Citation omitted.]” United States v. Anthony, 474 F.2d 770, 773 (5th Cir. 1973). The appellate courts of New York have refined the Anthony court’s general statement by including a reasonable time factor: “When a person in continuous police custody receives Miranda warnings and voluntarily waives his rights, it is not necessary to repeat the warnings before later questioning within a reasonable time thereafter. [Citations omitted.]” People v. Gonzalez, 5 App. Div. 3d 696, 697, 774 N.Y.S.2d 739 (2004) (11 1/2 hours after first questioning defendant was reasonable); See Zappulla v. New York, 296 F. Supp. 2d 309, 317-18 (E.D.N.Y. 2003), reversed on other grounds 391 F.3d 462 [2d Cir. 2004]) (collecting cases).
See also United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (1-day interval between waiver of Miranda rights and defendant’s statement to law enforcement was not unreasonable); Ballard v. Johnson, 821 F.2d 568, 571-72 (11th Cir. 1987) (3- to 4-hour gap between waiver of Miranda rights and third confession in another city was not unreasonable); Evans v. Cotter, 790 F.2d 1232 (5th Cir. 1986) (several-hours’ gap between waiver of Miranda rights and confession not unreasonable); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (5-hour interval between waiver of Miranda rights and defendant’s statement to law enforcement not unreasonable).
On the issue of repeated Miranda warnings, this court has generally held:
“[Ojnce the mandate of Miranda is complied with at the threshold of the interrogation by law enforcement officers, the warnings need not be repeated at the beginning of each successive interview. To adopt an automatic second warning system would be to add a perfunctory ritual to police procedures rather than provide the meaningful set of procedural safeguards envisioned by Miranda. [Citations omitted.]” State v. Boyle, 207 Kan. 833, 841, 486 P.2d 849 (1971).
See State v. Pyle, 216 Kan. 423, Syl. ¶ 9, 532 P.2d 1309 (1975) (“Once a suspect is fully advised of his rights and fully understands them, it is not necessary to give repeated Miranda warnings each time he is interviewed.”).
State v. Davis, 268 Kan. 661, 998 P.2d 1127 (2000), contains a number of parallels to the instant case. There, the 17-year-old defendant was convicted of first-degree felony murder, attempted first-degree murder, aggravated robbery, and aggravated burglary in a Manhattan shooting. Prior to trial, he filed a motion to suppress statements he made to police officers. At the hearing, testimony was received that prior to the defendant’s questioning, he was advised of his Miranda rights and that he waived them in writing. During the initial questioning, the officers left defendant alone to cool off. One of the officers testified that he was later summoned to the interview room by defendant who then stated that “he had to tell the story.” 268 Kan. at 665. Although the opinion is silent as to details, it appears defendant then described his participation in the crimes. The trial court denied the motion to suppress, and his confession was admitted at trial over his objection.
At trial, the State also sought to introduce the testimony of Mark Bejot, a youth care worker at a juvenile detention center who had participated in the intake of the defendant. Over defense objection that Bejot had not Mirandized the defendant, the trial court allowed Bejot to testify that he had asked the defendant to explain his arrest. The defendant told Bejot he was charged with attempted murder. Bejot then asked the defendant why, and the defendant replied that two individuals had called him a “nigger” and he had then shot the man five times and the woman in the head. 268 Kan. at 668. At trial, the defendant testified to deny he had done any of the shooting and said that his comments to Bejot were just “sarcastic.” 268 Kan. at 669.
On appeal, defendant argued, among other things, that the trial court had erred in admitting the Bejot testimony. This court held there was no error:
“A Miranda warning must be given prior to any type of custodial interrogation. State v. Clemons, 251 Kan. 473, 480, 836 P.2d 1147 (1992). The requirements of Miranda apply when an accused is interrogated by law enforcement officers or their agents. See State v. Pursley, 238 Kan. 253, 259-60, 710 P.2d 1231 (1985).
“The record shows that the defendant was last advised of his rights by Detective Shuck [of the Manhattan Police Department] at 5:44 a.m. in Manhattan. He was then taken to Junction City where Bejot began the intake process at 12:13 p.m. [6 Vz hours later], and the defendant made the statement in question. In State v. Boyle, 207 Kan. 833, 841, 486 P.2d 849 (1971), we held that once the mandate of Miranda is complied with at the threshold of the interrogation by law enforcement officers, the warnings need not be repeated at the beginning of each successive interview. While Kansas has not addressed the exact issue involved here, other courts have held that the mere passage of time between Miranda warnings and interrogation need not render a confession inadmissible. See State v. Trostle, 191 Ariz. 4, 14, 951 P.2d 869 (1997); State v. Rowe, 479 A.2d 1296, 1299 (Me. 1984). Further, the mere fact that different law enforcement officers were doing the questioning does not make the confession inadmissible. See Mainor v. State, 259 Ga. 803, 804-05, 387 S.E.2d 882 (1990).
“This case represents a closer question. We are faced with a juvenile defendant who had already given his confession [and voluntarily waived his Miranda rights] and was then taken to a detention center in a separate location where he was again asked questions, not by a police detective, but by a detention center worker. However, given his [prior] experience with law enforcement officers and looking at the totality of the circumstances, we conclude that the trial court did not err in finding the defendant’s statements to Bejot admissible.” 268 Kan. at 678.
Our court applied a “totality of the circumstances” review of the facts and concluded that Davis’ statements to Bejot were admissible. This impliedly includes a determination that under the totality of the circumstances, these statements were voluntarily and knowingly given and that the Miranda warning and waiver from 6 ½ hours earlier were still valid. See State v. Swanigan, 279 Kan. 18, 31, 106 P.3d 39 (2005) (totality of circumstances used to determine whether confession was voluntary); Cf. State v. Makthepharak, 276 Kan. 563, 567, 78 P.3d 412 (2003) (totality of circumstances used to determine whether Miranda waiver was voluntary, knowing, and intelligent); see e.g., United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (“Under the circumstances here, the 1-day interval between Miranda warning and waiver and [defendant’s] October 28 statement to [law enforcement] was not unreasonable”; Miranda warning still valid and statement voluntarily given); United States v. Nordling, 804 F.2d 1466, 1471 (9th Cir. 1986) (“Evaluating the totality of the circumstances, we conclude that there was no need for NTF agents to administer new Miranda warnings in this case.”); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (“The nearly five-hour break between the interviews does not of itself invalidate the initial waiver. The significance of this elapsed time must be assessed in view of [defendant’s] knowledge and conduct and other relevant circumstances.”); Brown v. State, 661 P.2d 1024, 1030 (Wyo. 1983) (totality of circumstances considered to determine “whether the prior Miranda warnings were effective to sufficiently advise the accused of his constitutional rights so that the prior voluntary and knowing waiver of those rights continued its efficacy”).
Applying this totality approach to Mattox’s statements to the Topeka detectives, we first reiterate that the district court found that Mattox was 22 years old and had 2 years of college. It found no smell of alcohol or drugs and noted that Mattox had been Mirandized at 4:30 p.m. and that he understood his rights. It found that after invoicing his rights to counsel and silence, Mattox voluntarily waived them around 7:30 p.m. by repeatedly initiating communication with Unruh and by providing information to him, both orally and in writing. Unruh’s statements were not evocative. As mentioned, these findings are supported by substantial competent evidence. We also again observe that there was no evidence in the record on appeal of threats, promises, or inducements for Mattox to talk.
We also reiterate that the evidence reveals Mattox had no objection to Unruh taking notes or to Unruh reviewing his notes and report with Mattox to ensure their accuracy. Mattox did not ask for corrections, additions, or deletions; he only reminded Unruh he had not committed the Lane shooting. He also knew that Unruh would pass on this murder information to the detectives for action, and he still had no objection. The evidence reveals that Mattox wrote out his own statement about the murders knowing it too would be given to law enforcement personnel for possible action and, because Unruh had left the building at midnight, Mattox apparently completed his statement in his cell without supervision. Moreover, at 12:55 a.m. he then took his now-completed written statement about the Lane murder with him to meet with the Topeka detectives who were there to interview him — about the Lane murder. The detectives identified themselves, told Mattox they believed he had information about a Topeka homicide, and began asking about the Lane murder. A number of these facts also constitute substantial competent evidence to support the trial court’s finding that the second interview was a continuation of the first.
In short, these facts demonstrate that despite Mattox’s knowledge of his Miranda rights and his knowledge that his information would be given to detectives, at approximately 9:21 p.m., he began a virtually uninterrupted series of voluntary acts. During these acts, continuing over several hours time, he either was providing, or preparing to provide, information to law enforcement about the Lane murder.
We conclude as a matter of law that under these circumstances, a second Miranda warning when Mattox arrived at the interview room was not required. Nor was an explanátion of Mattox’s Miranda rights required of the Topeka detectives, as Mattox alleged at oral arguments, because he knew his rights. As he told the detectives, “I know I need to talk to a lawyer, because I know anything I say y’all are going to twist it.” Nevertheless, they reminded him he had the same rights as on TV, i.e., the same rights he had invoked at 4:30 and then waived at 7:30 approximately 5 % hours earlier. He then replied, “So I’m not under arrest for it? Right.” We interpret his response as confirmation he again understood his Miranda rights.
Clear request for counsel
The basis for the district court’s granting of the State’s motion for reconsideration was its determination that during Mattox’s interview with the Topeka detectives, he did not make a clear request for legal counsel. While Mattox argued this alleged error to the Court of Appeals as an alternate basis for suppressing the evidence obtained by the detectives, on appeal to this court his brief simply states in his presentation of the issue: “Alternatively, detectives wrongly continued to interrogate Michael after he clearly invoked his right to counsel.” Rather than arguing this issue, however, he merely alleges that “as an initial matter, unless Michael at some point clearly and affirmatively knowingly waived his rights, such an analysis is moot. Michael’s response and the detective’s reply is clear evidence that Michael was not aware of his rights and that detectives did nothing to remedy that fact.” Additionally, no oral argument was made before this court on this issue.
Similarly, the State does not address the issue in its brief to this court. It merely argues that Mattox’s waiver continued unless and until he clearly and unequivocally reinvoked his rights. It does not discuss whether he reinvoked them. We consider the issue of Mattox’s possible reinvocation of his right to counsel as abandoned. See McGinley v. Bank of America, 279 Kan. 426, Syl. ¶ 4, 109 P.3d 1146 (2005) (A point raised only incidentally in a party’s brief but not argued in the brief is deemed abandoned.).
Issue Three: Did an independent basis for admitting Mattox’s handgun exist under United States v. Batane?
The State argues that if the statement to the Topeka detectives is suppressed, the Smith and Wesson .380 handgun found as a result of that interrogation should not be suppressed, citing United States v. Patane, 542 U.S. 630, 159 L. Ed. 2d 667, 124 S. Ct. 2620 (2004). Given our affirmance of the district court on die handgun issue, the Patane-based argument is moot.
The decision of the Court of Appeals is affirmed in part and reversed in part. The decision of the district court is affirmed.
Gernon, J., not participating.
Larson, S.J., assigned.
Allegrucci, J., dissenting.
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The opinion of the court was delivered by
Allegrucci, J.:
Defendant Justin E. Phinney pled no contest to possession of pseudoephedrine and brings both an appeal from the district court’s denial of his motion to reduce sentence and, pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), an out-of-time direct appeal of his sentence. He argues he should be resentenced under the identical offense doctrine as applied in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). The Court of Appeals affirmed the district court in an unpublished opinion filed July 9, 2004, and we granted Phinney s petition for review.
Phinney was charged with four drug-related violations, stemming from offenses occurring July 10, 2001. Counsel was appointed. At the preliminary hearing on December 14, 2001, the State agreed to dismiss Counts 2 through 4 and to recommend probation in exchange for Phinney s plea of no contest to the remaining count of possession or sale of ephedrine, pseudoephedrine, or phenylpropanolamine, in violation of K.S.A. 2001 Supp. 65-7006, a drug severity level 1 felony.
On February 7, 2002, Phinney received the standard 150-month prison sentence, with a dispositional departure to 36 months’ probation. Phinney did not file a notice of appeal.
On March 15, 2002, the Court of Appeals decided State v. Frazier, 30 Kan. App. 2d 398, holding that possession of pseudoephedrine, under K.S.A. 2001 Supp. 65-7006(a), and possession of drug paraphernalia, under K.S.A. 2001 Supp. 65-4152 (a)(3), are identical crimes, and a defendant convicted under 65-7006(a) may be sentenced only under the lesser penalty provision of 65-4152.
In November 2002, Phinney violated his probation; new counsel was appointed for Phinney, and probation revocation proceedings began. Phinney moved the district court to reduce his sentence from a severity level 1 felony to a severity level 4 felony based on the decision in Frazier.
On December 20, 2002, the district court denied Phinney’s motion, ruling that “[n]othing in the Frazier case . . . makes it retroactive.” The court revoked Phinney’s probation and ordered him to serve the original 150-month sentence.
On December 26, 2002, Phinney filed a notice of appeal from the district court’s denial of his motion to reduce his sentence. The appeal was not timely docketed, but in May 2003 the Court of Appeals granted Phinney’s motion to docket the appeal out of time.
On July 3, 2003, the Court of Appeals decided Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003). Wilson refused to apply Frazier retroactively on a K.S.A. 60-1507 collateral attack. In that case, the movant had pled no contest to possession of ephedrine or pseudoephedrine and had failed to appeal his sentence, which was imposed 2 years before Frazier was decided. The court reasoned that Wilson “could have raised the precise question decided by Frazier on appeal, but he failed to do so.” 31 Kan. App. 2d at 730-31.
On August 14, 2003, Phinney filed a second notice of appeal stating his “intention to appeal from all adverse judgments, rulings, and findings of fact entered by the district court at sentencing held on February 7, 2002.” On August 18, 2003, Phinney filed a motion to consolidate this appeal with the earlier appeal from denial of his motion to reduce sentence, and, in the absence of objections or jurisdictional challenges, the Court of Appeals granted it.
On September 19, 2003, the Court of Appeals issued an order requiring the parties to show cause why the appeal should not be dismissed for lack of jurisdiction based on all notices of appeal being filed outside the 10-day limitation period in K.S.A. 22-3608(c) and the original sentencing date.
In response, Phinney filed two affidavits and a copy of a portion of the sentencing transcript. One affidavit was from Phinney. It stated that his attorney had not informed him of his right to appeal his sentence, the appellate remedies available, or the steps necessary to implement them. Phinney s affidavit also noted that his attorney never specifically discussed the possibility of an appeal raising the identical offense doctrine. Phinney asserted that had he been so informed, he would have instructed his attorney to file and perfect a timely appeal. The second affidavit was from Phinney s defense attorney in the district court, corroborating his failure to inform Phinney of his right to appeal his sentence, describe available remedies, or outline the steps necessary to implement them. The sentencing transcript demonstrated that the district judge also failed to inform Phinney on the record of his right to appeal his sentence or the procedures for doing so.
The State was granted three extensions of time but nevertheless failed to file any response to the Court of Appeals’ show cause order.
On October 17, 2003, the Court of Appeals decided to retain jurisdiction of Phinney s direct appeal pursuant to Ortiz, 230 Kan. 733, as applied in State v. Willingham, 266 Kan. 98, 967 P.2d 1079 (1998). Phinney’s case was assigned to the summary calendar, and no oral arguments were heard.
In its July 9, 2004, opinion, the Court of Appeals held that Phinney was not entitled to retroactive application of Frazier on his “collateral attack.” The Court of Appeals relied on Wilson, 31 Kan. App. 2d 728, Syl., and on Easterwood v. State, 273 Kan. 361, 383, 44 P.3d 1209 (2002). Phinney, slip op. at 4-5.
The Court of Appeals’ opinion ignored its earlier implicit decision to hear the case under an Ortiz exception. It considered the appeal as a collateral attack, stating: “Phinney had been sentenced and the time for filing a notice of appeal had run by the time Frazier was decided.” Slip op. at 5. It did not discuss the source of its jurisdiction to make the ruling it made on the merits of the Frazier claim or evaluate the factors that are usually considered in granting or denying an Ortiz exception.
On March 1, 2005, this court granted Phinney’s petition for review. On March 29, Phinney filed a supplemental brief in this court and has filed notices of additional case authority. The State has not filed a brief or pleading since filing its brief before the Court of Appeals.
The issue of appellate jurisdiction is one of law over which this court has unlimited, de novo review. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. If the record indicates that jurisdiction does not exist, the appeal must be dismissed. State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001).
Despite the general rule that a criminal defendant can appeal following judgment, no appeal can be taken from a judgment of conviction upon a guilty or no contest plea, “except that jurisdictional or other grounds going to the legality of the proceedings may be raised” as provided by K.S.A. 2004 Supp. 60-1507. K.S.A. 2004 Supp. 22-3602(a). Following a plea, a defendant may, however, challenge the sentence imposed. There are a limited number of methods by which a defendant may challenge his or her criminal sentence before an appellate court. The three that are potentially pertinent in this case are: (1) a direct appeal from sentencing; (2) an appeal from denial of a motion to correct an illegal sentence under K.S.A. 22-3504; and (3) a civil proceeding collaterally challenging the sentence under 60-1507. Phinney has, at various points in this litigation, attempted to employ all three of these methods, and on appeal he argues he is entitled to relief under all three.
We first consider Phinney s assertion that his sentence was illegal. A defendant may challenge his or her sentence before an appellate court if the sentence qualified as “illegal.” K.S.A. 22-3504 gives the court jurisdiction to correct an illegal sentence at any time. Neither the district court nor an appellate court has jurisdiction of an untimely request to modify a sentence unless the sentence is illegal, as that word has been defined in interpreting case law. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
A sentence is illegal if it is: (1) imposed by a court without jurisdiction; (2) does not conform to the statutory provision, either in the character or the term of the punishment authorized; or (3) ambiguous with respect to the time and manner in which it is to be served. State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004) (citing State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 [1997]).
Here, there is no question that the district court had jurisdiction to find Phinney guilty and impose a sentence under K.S.A. 2001 Supp. 65-7006(a). Phinney s sentence conformed to 65-7006(a) as to both its character and term of punishment. His sentence was not ambiguous in the time or manner in which it was to be served. Thus, Phinney’s sentence was not illegal under the statute. See Barnes, 278 Kan. at 123-24 (underlying sentence attacked under identical offense doctrine as applied in State v. McAdam, 277 Kan. 136, 83 P.3d 161 [2004], not illegal); see also United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) (no constitutional right to lesser penalty when two applicable statutes proscribe identical conduct).
McCoin involved a similar situation. In that case, the defendant filed a motion attacking his sentence as illegal in light of McAdam, decided after he was sentenced. This court held that because McCoin’s sentence was not illegal, the district court never acquired jurisdiction to rule on that motion because it was untimely. Consequently the appellate courts had no jurisdiction to review the district court’s ruling. McCoin, 278 Kan. at 468.
The situation is almost identical here. The sentence Phinney received under 65-7006(a) does not qualify as “illegal” under K.S.A. 22-3504. The filing of a timely notice of appeal is jurisdictional, and if the appeal is not taken within the 10-day period fixed by statute, it must be dismissed. See State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). Clearly, Phinney failed to appeal within 10 days of sentencing as required by K.S.A. 22-3608(c). Since Phinney’s sentence was legal, the district court never acquired jurisdiction to hear his untimely motion to reduce sentence. Consequently, the Court of Appeals lacked and this court lacks jurisdiction to entertain an appeal from the district court’s denial of the motion. Thus, that appeal (90,639) should be dismissed.
A defendant also may challenge a sentence in an appellate court collaterally pursuant to 60-1507. This court indicated that the proper procedure for raising the application of the identical offense doctrine under McAdam or, in Phinney’s case, Frazier, would be 60-1507. See McCoin, 278 Kan. at 468. The Court of Appeals’ decision in Wilson, however, clearly held that Frazier would not be retroactively applied to a 60-1507 attack on a sentence when an unappealed conviction followed a favorable plea agreement and was “already final” at the time Frazier was filed. Wilson, 31 Kan. App. 2d at 730-34.
In Barnes, 278 Kan. at 122-28, we held that a defendant whose direct appeal on a McAdams-type issue was still pending at the time McAdams was decided, is entitled to be resentenced. On the other hand, in Bryant v. State, 280 Kan. 2, Syl. ¶ 3, 118 P.3d 685 (2005), we held that a defendant who enters a plea and does not file a direct appeal cannot collaterally challenge the sentence imposed on the ground that the offense he or she pled guilty to and a second offense having a lesser penalty have identical elements. Thus, where a 60-1507 motion raises a Frazier or McAdam claim, the appellate courts have jurisdiction over such cases, but the claims will not be successful unless a direct appeal of the sentence was pending at the time Frazier or McAdam was decided.
In addition, even if we were to construe Phinney s motions as a 60-1507 pleading, although it might be properly before this court, it would provide him no relief. However, Phinney did not institute a 60-1507 proceeding. Phinney concedes that be was not collaterally attacking his conviction or sentence but seeking a legal sentence. The Court of Appeals nevertheless insisted in its opinion that “this is a collateral attack” and found Wilson, a 60-1507 case, dispositive. Slip op. at 4-5. This was incorrect.
Phinney complied with none of the detailed procedures required to institute a 60-1507 proceeding, and he was not pro se. Moreover, even if Phinney s motion were to be considered a 60-1507 motion, the issue of retroactivity has been disposed of in the Frazier setting by the Court of Appeals in Wilson, and disposed of in the analogous McAdam setting by this court in Bryant. In the circumstances of Bryant, “[a] defendant who enters a guilty plea but does not file a direct appeal cannot collaterally challenge the sentence imposed.” Bryant, 280 Kan. 2, Syl. ¶ 3.
Phinney also asserts that his most recent notice of appeal is a direct appeal from his sentence under Ortiz and is properly before this court. Phinney did not file a notice of appeal within 10 days of his sentencing. In fact, Phinney did not file a notice of appeal challenging his underlying sentence until just over a year and a half after he was sentenced. Accordingly, this court is required to dismiss his appeal for lack of jurisdiction unless the exception articulated in Ortiz applies to excuse the untimeliness of his direct appeal.
A limited exception to the general rule requiring a timely appeal from sentencing is recognized in the interest of fundamental fairness only in those cases where an indigent defendant was either: (1) not informed of the rights to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. Ortiz, 230 Kan. at 735-36 (relying on Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 [1972]). If these narrow exceptional circum stances are met, a court must allow an appeal out of time. See Willingham, 266 Kan. at 99-102.
After imposing a sentence in a case which has gone to trial on a not guilty plea, the trial court is required to advise the defendant of his or her right to appeal and of the right of an indigent to appeal in forma pauperis. K.S.A. 22-3424(f); Willingham, 266 Kan. at 100 (quoting K.S.A. 22-3424[f]). “ The purpose of K.S.A. 22-3424(f) logically is the same as that of [then Fed. R. Crim. Proc. 32(a)(2)]: “to insure that all defendants who might wish to appeal are fully aware of their appeal rights.” [Citations omitted.]’ ” 266 Kan. at 101. A full awareness of these rights necessarily includes the knowledge that there is a time frame within which these rights must be exercised. 266 Kan. at 101.
In Willingham, on review of the record from an Ortiz hearing, the court found that no appeal was filed by Willingham’s counsel; the limited advice given by counsel was insufficient to establish a voluntary waiver; no written waiver was obtained; and the court failed to advise the defendant at the time of sentencing concerning his appeal rights, in violation of K.S.A. 22-3424(f). 266 Kan. at 101. The court noted that the posture of the case would be more like Ortiz had counsel followed the provisions of K.A.R. 105-3-9 or testified that he fully advised the client of his right to appeal, including time limits, or if there had been a full discussion of the rights at sentencing. 266 Kan. at 101-02.
No Kansas case law prevents a defendant from claiming an Ortiz exception to appeal his or her sentence out of time after benefitting from a favorable plea. In State v. Redmon, 255 Kan. 220, 222-23, 873 P.2d 1350 (1994), a defendant who entered a guilty plea still had the right to file an appeal of his sentence out of time when the circumstances fit the Ortiz exception. As noted previously, Willingham and Ortiz indicate that fundamental fairness requires all defendants to be advised of their rights to appeal. See Willingham, 266 Kan. at 100-01; Ortiz, 230 Kan. at 735-36.
Here, the Court of Appeals did not remand this case to the district court for an Ortiz determination but rather made that determination itself.
At least one case has held explicitly that the proper procedure for determining applicability of an Ortiz exception is to first raise the issue before the district court to allow a proper factual record to be created. See State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986). This is consistent with cases arising in other settings, holding that absent a district court record, there is nothing for an appellate court to review; thus, if a district court was never given an opportunity to consider an issue, the case is not properly before the appellate court. See, e.g., State v. Porter, Green & Smith, 228 Kan. 345, 615 P.2d 146 (1980). At times, however, such cases hold that in order to prevent denial of fundamental fairness upon which Ortiz is premised, a court may consider granting an Ortiz exception for the first time on appeal. See Van Cleave, 239 Kan. at 119.
In several recent cases seeking application of Frazier or McAdam through out-of-time appeals based on Ortiz, Court of Appeals panels have regarded remand as mandatory in accord with Willingham so the district court could hold hearings to determine if the movants were advised of their rights to appeal and whether they requested appeals to be filed. See, e.g., State v. Singleton, 33 Kan. App. 2d 478, 488-89, 104 P.3d 424 (2005).
However, in as many other similar cases, other Court of Appeals panels have simply considered the Ortiz issue and made determinations without remanding to the trial court. See, e.g., Phinney, slip op. at 3-5.
Presumably, in those cases remanded for Ortiz hearings, such as Singleton, the record on appeal was insufficient for the Court of Appeals to malee a ruling, and, in the other cases, such as Phinney’s, the Court of Appeals considered the record sufficient to enable it to make the Ortiz determination itself. This is the proper procedure to follow for making an Ortiz determination.
Here, we find that the record is factually and legally sufficient to support an Ortiz determination being made for the first time on appeal. Thus, the Court of Appeals was empowered to decide the two questions that could have been before the district court. They are aldn to those before a court on a motion to suppress: What are the facts, based on substantial competent evidence? And what is the ultimate legal conclusion drawn from those facts after our de novo standard of review'?
The Court of Appeals has consistently said that whether the exception articulated in Ortiz excuses a defendant’s failure to timely file a direct appeal is a question of law over which an appellate court has unlimited, de novo review. See, e.g., State v. Mitchell, 30 Kan. App. 2d 1090, 1091-92, 54 P.3d 969, rev. denied 275 Kan. 967 (2002) (citing State v. Parker, 23 Kan. App. 2d 655, 658, 934 P.2d 987, rev. denied 262 Kan. 967 [1997]); State v. Dugan, 29 Kan. App. 2d 71, 72, 25 P.3d 145, rev. denied 271 Kan. 1039 (2001) (citing Parker); Parker, 23 Kan. App. 2d at 658 (citing Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 [1991]). The cases applying this de novo standard cite other Court of Appeals cases for that proposition. We do not agree that review is entirely de novo.
Gillespie, 250 Kan. 123, the Supreme Court case upon which the Court of Appeals relied in its initial pronouncement of this standard, involved a suit by trust beneficiaries against a trustee, a factual setting completely distinct and divorced from the cases relying on it. Gillespie most certainly does not hold that the question of whether Ortiz excuses a criminal defendant’s untimely direct appeal is one of law entitled to de novo review. 250 Kan. at 129. The Court of Appeals’ reliance on Gillespie does not support a de novo standard of review of an Ortiz exception determination. Instead, we adopt the same standard of review for Ortiz exceptions that is applied in the suppression context. The facts underlying an Ortiz exception ruling should be examined on appeal under a substantial competent evidence standard of review. The ultimate legal determination of whether those facts fit the exception should be reviewed under a de novo standard. If, in Phinney’s case, his response to the Court of Appeals’ show cause order, combined with the record, provides sufficient evidence for an appellate court to make an Ortiz determination, this court should review the Court of Appeals’ determination under that standard. See State v. Gleason, 277 Kan. 624, 644-45, 88 P.3d 218 (2004).
Phinney’s affidavit states that his attorney did not inform him of his right to appeal his sentence, the appellate remedies available, or the steps necessary to implement them. Further, Phinney’s af fidavit notes that his attorney never specifically discussed the possibility of an appeal on the identical offense doctrine. Phinney asserts that had he been so informed, he would have instructed his attorney to timely file and perfect an appeal. The record also contains an affidavit from Phinney’s defense attorney, who corroborates that he did not inform Phinney of his rights to appeal or describe the available appellate remedies or the steps necessary to implement them. The transcript from sentencing also demonstrates that the district court never informed Phinney of the right to appeal or its attendant procedures. Unlike Ortiz, Phinney did not sign a waiver of his rights. A waiver might be found had Phinney’s counsel followed K.A.R. 105-3-9, or testified that he had fully advised Phinney of his appeal rights and the attendant procedures. As in Willingham, no such waiver may be found in Phinney’s case.
Three extensions of time were granted to the State, but the State failed to file any response or objections to Phinney’s affidavits. The State also did not file a brief in this court after Phinney’s petition for review was granted. These failures do not affect the sufficiency of the record, and, absent an objection, omissions in the record will not be considered on appeal. See Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994). We conclude that, under these circumstances, a remand for an Ortiz hearing before the district court is unnecessary. The record is sufficient to have permitted the Court of Appeals and to permit this court to evaluate Phinney’s claim to an Ortiz exception.
As stated above, the Court of Appeals initially retained Phinney’s appeal “pursuant to State v. Willingham and State v. Ortiz.” Slip op. at 3. Curiously, however, it later appeared to reject application of an Ortiz exception in this case. It confused the jurisdictional and procedural question of whether the exception applied with the substantive question of whether Frazier should allow resentencing. Slip op. at 5.
If a defendant meets the “narrow exceptional circumstances” as set out in Ortiz and as applied in Willingham, he or she must be allowed to file an appeal out of time. See Willingham, 266 Kan. at 101-102. Given the content of the affidavits and the sentencing transcript in this case, substantial competent evidence supports the facts requiring an Ortiz exception, and we conclude, as a matter of law, the exception applies. Phinney’s direct appeal of his sentence is properly before this court.
Having determined that Phinney’s direct appeal is properly before this court, does the Frazier rule compel that Phinney be re-sentenced? The Court of Appeals approach to this issue is confusing. Although it initially allowed Ortiz and Willingham to excuse the untimeliness of Phinney’s appeal, it ultimately ruled his case was final when Frazier was decided because he had been sentenced and the time for filing a notice of appeal had expired. Slip op. at 4-5.
This court clearly held in State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), and State v. Barnes, 278 Kan. 121, that a defendant should benefit from a ruling made while his direct appeal is pending. Campbell involved a direct appeal pending when Frazier was decided, and this court ultimately affirmed the holding in Frazier by finding that 65-7006(a) was identical to 65-4l52(a)(3) and that the defendant should have been sentenced under the lesser penalty provision. Campbell, 279 Kan. at 16-17. Barnes involved a direct appeal pending when McAdam was decided, and this court found the defendant was entitled to resentencing under McAdam. Barnes, 278 Kan. at 130.
Phinney argues that Campbell and Barnes control his case. The State has not responded to this argument because it has not submitted a brief since the one it filed in the Court of Appeals. That brief was filed before this court’s decisions in Campbell and Barnes.
The rationale for allowing an Ortiz appeal out of time is fundamental fairness. It is a device to put the defendant into the position he or she would have been in if fully informed of his or her appeal rights after sentencing. If a defendant can meet the narrow exceptional circumstances outlined in Ortiz and applied in Willingham, that defendant’s out-of-time appeal should be treated as if it were a timely filed direct appeal. See Willingham, 266 Kan. at 101-02.
Thus, Phinney’s appeal should be treated as if it had been filed timely. Had that occurred, it would have been pending when Frazier was decided, and Frazier should apply to reduce Phinney’s sentence, in accord with the holding in Campbell. This case must be remanded for resentencing as a drug severity level 4 felony.
This conclusion is also supported by this court’s opinion in Bryant v. State, 280 Kan. 2. While we refused in Bryant to apply McAdam on a collateral attack, the final paragraph of the opinion contemplated an “alternative means to the end Bryant seeks,” i.e., retroactive application of McAdam may be achieved by perfecting a direct appeal out of time, as Phinney has done here. See Bryant, 280 Kan. at 13.
The appeal from the district court and the Court of Appeals on the motion to reduce sentence (90,639) is dismissed for lack of jurisdiction. In case No. 91,068, the Court of Appeals and the district court are reversed, and the case is remanded for resentencing in accord with Frazier.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a landowner who had redeemed from a sale made in a foreclosure suit, to enjoin sale of the same land on execution by a judgment creditor who was not a party to the foreclosure suit, and whose judgment became a lien on the day the foreclosure judgment was rendered. Plaintiff prevailed. The sheriff, nominally interested, and Katie E. Thomas, the judgment creditor and real party in interest, appeal.
The Federal Land Bank of Wichita commenced actions in the district court of Morton county, numbered, respectively, 2297, 2298 and 2299, to foreclose separate mortgages on separate tracts of land owned by the mortgagor, M. C. Combs. On September 3, 1928, judgment was rendered in each case in favor of the Land Bank and against Combs for the sum due and for foreclosure of mortgage. Mrs. Thomas held a second mortgage on the land involvéd in case 2297, and was made a party defendant in that suit. On September 3, 1928, when the Land Bank judgment was rendered in case 2297, Mrs. Thomas recovered a personal judgment against Combs, and judgment for foreclosure of mortgage. Afterwards the land in volved in case 2297 was sold, with the result that no part of the judgment of Mrs. Thomas against Combs was satisfied. At the time the suits in cases 2298 and 2299 were filed, Mrs. Thomas had no lien of any kind on the tracts involved in those suits. It was neither necessary nor proper to make her a party defendant in those suits, and she was not made a party. When, however, the personal judgment against Combs was rendered in her favor in case 2297, the judgment became a lien on the tracts involved in cases 2298 and 2299, by virtue of R. S. 60-3126. The tracts involved in cases 2298 and 2299 were sold pursuant to the foreclosure judgments in favor of the Land Bank. The bank purchased at the sales for the amount of its judgments, interest, and costs, and received certificates of purchase. Combs conveyed to McFall. The conveyance effected transfer to McFall of Combs’ .right to redeem, and McFall redeemed within twelve months after the sale. After expiration of eighteen months from date of sale Mrs. Thomas caused execution to be issued on her judgment, and levied on the redeemed tracts. This action was commenced to enjoin further proceedings under the writ, with the result stated.
When the district court enjoined the second sale, the court applied the statute enacted in 1893, which reads as follows:
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.” (R. S. 60-3460.)
It will be observed the quoted section does not apply to liens superior to the lien under which the land is sold; as, for example, to the lien of a first mortgage when the sale is made under foreclosure of a second mortgage. In such cases the land may be sold again to satisfy the superior lien.
The first question which arises under the quoted statute is whether the judgment lien in favor of Mrs. Thomas in case 2297 was inferior to the lien of the judgments in favor of the Land Bank in cases 2298 and 2299. As indicated, all three judgments were rendered on the same day, and all of them became judgment liens on all lands of Combs from the first day of the term of court at which the judgments were rendered. The liens of the Land Bank did not, however, originate in its judgments. Its judgments merely enforced mortgage liens in existence before the foreclosure suits were com menced. Mrs. Thomas’ lien originated in her judgment, and the Land Bank liens were necessarily superior to the lien which Mrs. Thomas acquired.
The next question is, Did Mrs. Thomas have a right to redeem? The question is answered by the following, among other provisions of the redemption law:
“For the first twelve months after such sale, the right of the defendant owner to redeem is exclusive; but if no redemption is made by the defendant owner at the end of that time, any creditor of the defendant and owner whose demand is a lien upon such real estate may redeem the same at any time within fifteen months from the date of sale. A mechanic’s lien, before decree enforcing the same, shall not be deemed such a lien as to entitle the holder to redeem.” (R. S. 60-3440.)
“Any creditor whose claim becomes a lien prior to the expiration of the time allowed by law for the redemption of creditors may redeem. A mortgagee may redeem upon the terms hereinafter prescribed before or after the debt secured by the mortgage falls due.” (R. S. 60-3441.)
“A junior judgment creditor or lien holder may redeem from a senior judgment creditor or lien holder by paying to the party himself or to the clerk of the district court the full sum due said senior creditor or lien holder, with interest and costs, and shall become thereby vested with full title to the judgment so redeemed from and to all the liens of such judgment.” (R. S. 60-3446.)
The language of R. S. 60-3440 is not “Any creditor of the defendant and owner whose demand has been adjudicated to be a lien” may redeem; the language is “Any creditor whose demand is a lien” may redeem. The fact that a creditor whose demand is a lien may redeem although it has not been adjudicated to be a lien, is made perfectly clear by the last sentence of the section, which requires an adjudicated lien in just one instance. A mechanic’s lien, although a lien in fact, is not regarded as a lien entitling the holder to redeem until a decree enforcing the lien has been rendered. This provision shows the legislature had specifically in mind and specifically dealt with the distinction between adjudicated liens and liens existent in fact but not adjudicated to be such.
Having drawn the distinction between existing liens in fact and adjudicated liens in R. S. 60-3440, R. S. 60-3441 proceeds to say, without qualification, that any creditor whose claim becomes a lien before expiration of the time allowed for redemption by creditors may redeem. The section was interpreted in the case of In re Estate of Wood, 118 Kan. 548, 235 Pac. 864, as follows:
“A general unsecured creditor of the debtor whose land is sold on execution or order of sale under mortgage foreclosure is not permitted to subject the right of redemption to the payment of his claim. By putting the claim in judgment before the expiration of the period of redemption and thereby acquiring a lien on the debtor’s nonexempt real estate, he becomes entitled, not to have the right of redemption sold and the proceeds applied to it, but to redeem for himself if the debtor does not do so within a year. _ (R. S. 60-3441.)” (p. 550.)
R. S. 60-3442 provides that creditors having a right to redeem, may redeem from each other. R. S. 60-3443 then prescribes the terms of redemption from a mortgage or other lien holder whose claim is not yet due. This section has been amended in important particulars (R. S. Supp. 60-3443). There is no room for interpolating into either the original or the amended section a proviso that, without ground for suit against the landowner not in default, the creditor must nevertheless have gotten a judgment, somewhere and somehow, establishing his unmatured claim as a lien, before he can redeem. R. S. 60-3446 prescribes the terms for redemption by a junior judgment creditor, and there is no hint that the junior judgment creditor must have two judgments to enable him to redeem, one the judgment which the law itself made a lien, and then a second judgment that his judgment lien is a lien.
In this instance, on September 3, 1928, Mrs. Thomas put her claim against Combs in judgment. Whether there was a dispute about her claim does not appear. Whether a dispute did or did not exist, the claim was adjudicated. It required no further judgment to make the personal judgment against Combs a lien on the land in cases 2298 and 2299, and it required no execution or seizure under execution to create the lien. The statute not only declared the judgment was a lien, but dated the lien back to the beginning of the term at which the judgment was rendered. When the tracts in cases 2298 and 2299 were sold to the Land Bank, Mrs. Thomas was a creditor of the landowner whose demand was a lien, and was a judgment creditor who had a right to redeem. By doing so Mrs. Thomas would not only have become entitled to an assignment of the certificate of sale issued to the Land Bank (R. S. 60-3452), but she would have become legal assignee of the Land Bank’s judgments, including the lien of those judgments on any other land Combs might have.
The result of the foregoing is, the legislative intention is expressed with such definiteness and clarity that it is idle to debate existence of Mrs. Thomas’ right to redeem from tire sales to the Land Bank in cases 2298 and 2299.
The owner redeemed within the preferential period of twelve months, and Mrs. Thomas had no opportunity to exercise her right to redeem. This fact did not exclude her from the class of lien holders having right to redeem within fifteen months. This subject was considered at length in the opinion in the case of Case v. Lanyon, 62 Kan. 69, 61 Pac. 406. The facts in the Lanyon case were that a lumber company obtained judgment against a smelting company, execution was issued on the judgment, the land was sold, and the sale was confirmed. The smelting company assigned its right of redemption, and the assignee redeemed within the exclusive twelve months’ period. Soon after sale and confirmation, and within the twelve months’ period, another creditor obtained judgment against the smelting company. After redemption by the landowner from the sale under the first judgment, execution was issued on the second judgment, and the land was again sold. The district court denied a motion to confirm the second sale, and allowed a motion to set aside the second sale. The judgment of the district court was affirmed by this court, on the ground the second sale was contrary to the provisions of R. S. 60-3460. It is not necessary to reprint the opinion here. The decision has stood for almost thirty-one years as a correct interpretation of the redemption law of this state, unqualified by judicial decision and unmodified by legislative enactment.
Mrs. Thomas cites the case of Stacey v. Tucker, 123 Kan. 137, 254 Pac. 339. In that case a mortgagee commenced an action to foreclose. There was on the record what appeared to be a second mortgage. The second mortgagee was not made a party. The syllabus reads:
“Where a senior mortgagee brought suit, foreclosed his mortgage and purchased the property at sheriff’s sale, not having made a junior mortgagee a party: Held, (a) the junior mortgagee’s rights were not affected by the proceedings; (b) the junior mortgagee was not barred for failure to redeem the land, and an action by the senior mortgagee afterwards to quiet title against the junior mortgagee was of no avail.” (f 1.)
The opinion casually refers to but does not analyze or discuss R. S. 60-3440, 60-3441, 60-3442 and 60-3460, and casually refers to but does not analyze or discuss the opinion in Case v. Lanyon, 62 Kan. 69, 61 Pac. 406, or the opinion in Gille v. Enright, 73 Kan. 245, 84 Pac. 992, which applied the decision in the Lanyon case. The opinion then says:
“The statutes and cases cited above are not applicable here, because the rights of the junior mortgagee were not adjudicated. The junior mortgagees were not parties to the foreclosure proceedings. We are of opinion that the legislature in the enactment of the statutes above cited contemplated liens adjudicated as such, and this court, in construing such statutes, considered the rights of lien holders which had been determined — those about which there was no question. The question might very properly arise as to whether a junior mortgage was a lien, whether it had been paid, or whether barred by the statute of limitations, etc., therefore there is always a question to be determined whether an alleged lien is actually a lien.” (Stacey v. Tucker, 123 Kan. 137, 138, 254 Pac. 339.)
So, we have in this Stacey case an admission that the liens in the Lanyon and Gille cases were liens which had been determined; that is, about which there was no question; that is, which had been adjudicated in a sense which satisfied the requirement of the Stacey decision. Of course, the junior judgment creditor in the Lanyon case was not a party and could not be a party to the action in which the senior judgment creditor obtained judgment, any more than Mrs. Thomas could have been a party in cases 2298 and 2299. But the claim of the junior creditor was put beyond question and made a lien — adjudicated-—just as the existence and validity of Mrs. Thomas’ claim was put beyond question and made a lien — adjudicated — by the judgment in her favor which the statute instantly made a lien dating from the commencement of the term of court at which the judgment was rendered. To omit such liens would be to emasculate the statute, and there is not a word in any decision of this court previous to the decision in the Stacey case indicating such an intention.
The decision in the Stacey case involved merely an undetermined claim of second-mortgage lien, which might or might not be a valid claim. It did not involve a finally adjudicated claim which was indisputably a lien by virtue of court judgment and statute. The soundness of the decision in the Stacey case as a determination of the specific controversy in that case, is not a matter of present concern.
In the case of Sigler v. Phares, 105 Kan. 116, 181 Pac. 628, a second mortgagee was a party to an action to foreclose a first mortgage. The defense of payment was interposed, so that the second mortgagee did not obtain judgment until after sale under the judgment foreclosing- the first mortgage. The landowner redeemed within the exclusive period. Subsequently, and within fifteen months from date of sale, the second mortgagee attempted to redeem. This court held his attempt was unavailing. In the course of the opinion some seeming verbal difficulties in the statute were adverted to, and it was said:
“Yet a judgment obtained after the sale, which gives a lien upon the real estate of the debtor owner, is held by this court to confer a right to redeem. (Case v. Lanyon, 62 Kan. 69, 61 Pac. 406; Gille v. Enright, 73 Kan. 245, 84 Pac. 992.) And such is the practice elsewhere. (See Falbe v. Caves, 151 Wis. 54; Brown v. Markley, 58 Ia. 689.)” (p. 119.)
The disadvantage of the second mortgagee in protecting himself from loss of the fruits of his lien by bidding at the sale before his lien was established, was adverted to, and the court said:
“Except for the disadvantage referred to, which appears to be a necessary consequence of the statute, and to be in accordance with the general statutory purpose of protecting primarily the interests of the owner whose land is sold on execution or order of sale, the second mortgagee was left in just as favorable a situation as though his lien had been confirmed as a part of the original judgment foreclosing the first mortgage. By exercising his exclusive right to redeem within twelve months after the sale, the owner obtained a title freed from the claim of the second mortgagee, by virtue of the provision of the statute that, [quoting R. S. 60-3460].” (p. 120.)
In this instance Mrs. Thomas was not at any disadvantage in bidding at the sale, if she desired to do so. Her judgment giving her a lien was rendered the same day the judgments under which the land was sold were rendered.
The opinion in Sigler v. Phares concludes as follows:
“The sale was legally made, and the statute gives the owner of the fee the right to redeem by paying the amount of the bid. The exercise of- that right cut off the remedy of the second mortgagee against the land. His loss results from the property having brought at the sale no more than the amount of the first lien.” (p. 121.)
Mrs. Thomas did not bid at the sale, and her loss results from the fact that the land did not sell for enough to satisfy her judgment as well as the Land Bank judgment.
The counter abstract shows that at the trial it was stipulated the files, records and proceedings in the Land Bank cases should be received in evidence. They are not abstracted, and the court sent for the journal entries of judgment and the orders of sale. The journal entry and order of sale in case 2298 and in case 2299 show that surplus was ordered brought into court to abide further decision of the court.
If the land had sold for more than the Land Bank’s lien, Mrs. Thomas would have been entitled to the surplus, to the extent of her lien, on application to the court for disposition of surplus to her as a judgment lien holder. Questions frequently arise with respect to who is or has become entitled to surplus in the hands of the court,’ and it has always been a feature of equity practice to determine such claims on applications in various forms for distribution of surplus. Normally, on foreclosure of a mortgage, all holders of inferior liens are made parties, and on foreclosure sale the proceeds of sale stand for the land, for distribution among lien holders, whose liens are cut off by the sale. Before the redemption law was enacted, if an inferior judgment lien holder was not made a party to the suit, his lien was not affected, and he could still enforce it. Under the redemption law, such liens are cut off the same as if the lien holders had been parties to the suit.
In the case of Johnston v. Wear, 110 Kan. 237, 204 Pac. 141, an action was commenced in the district court of Thomas county to foreclose a mortgage, and the action proceeded regularly to judgment and sale. About the time the foreclosure suit was commenced a creditor commenced an independent action in the United States district court for the district of Kansas, and attached the land. After the sale in the foreclosure suit judgment was rendered in the attachment suit, and the land was again sold. It was held the lien of the attachment was cut off by the foreclosure sale, and the federal court sale conveyed nothing. After noting that the attachment lien dated from the time the land was attached, the court said:
“Section 478 of the code of civil procedure [now R. S. 60-3441] in part reads:
“ 'Any creditor whose claim becomes a lien prior to the expiration of the time allowed by law for the redemption of creditors may redeem.’
“F. E. Wear being a creditor and holding a lien inferior to the mortgage in the foreclosure action had the right to redeem the property from the sheriff’s sale in that action. Section 497 of the code of civil procedure [now R. S. 60-3460] now becomes very material. That section reads:
“ ‘Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.’
“The sale of the real property under the judgment in the federal court was made in violation of this statute. No right was given by that sale, nor was any title conveyed by the deed issued under it. In Case v. Lanyon, 62 Kan. 69, 61 Pac. 406, this court said: [Quotation.]
“To the same effect is Gille v. Enright, 73 Kan. 245, 84 Pac. 992.” (Johnston v. Wear, 110 Kan. 237, 241, 242, 204 Pac. 141.)
Since inferior judgment liens are cut off by the sale, surplus takes the place of the land, and the lien holders may apply for distribution of proceeds of sale to them. Besides that, equity always had, and still has, power to do what ought to be done, and whenever surplus, standing for the land to which the lien attached, ought in equity to be distributed to lien holders, it may be distributed to them, on application to the court having control of the surplus. This is the very purpose and object of reserving, in judgment and order of sale, power to dispose of surplus.
In the case of Ellis v. Southwell, 29 Ill. 549 (1863), the syllabus reads:
“It is the practice in foreclosing a mortgage, to make all encumbrancers parties, and for the decree of foreclosure to ascertain and settle the rights of all the parties, to decree the payment of the mortgage debt, and on default the sale of the mortgaged premises, and the application of the proceeds to the payment of each encumbrancer, according to priority. But on such sale, the surplus remaining after payment of the mortgage debt, may be disposed of, on application, to an encumbrancer not a party to the suit, if it appears that he is entitled in equity to receive it.”
In the case of Montague v. Marunda, 71 Neb. 805 (1904), the syllabus reads:
“Upon the foreclosure of a mortgage, and a sale and confirmation thereunder, if a surplus remains after the payment of the mortgage debt and costs, the district court, in its equitable jurisdiction, has full power, upon an application being made for a distribution of the surplus, to bring in all parties necessary to a determination of the ownership of the fund, and to try and determine that question.” ( If 2.)
In the opinion it was said:
“To voluntarily relinquish its jurisdiction over the fund, which was in its possession, would be to surrender one of the most beneficial powers of a court of chancery.” (p. 809.)
The jurisdiction was taken for granted in the case of In re Estate of Wood, 118 Kan. 548, 235 Pac. 864. In that case, after the death of a mortgagor owner the mortgage was foreclosed and the land was sold subject to redemption. In discussing the situation of unsecured creditors the court said:
“When the debtor dies owing a general creditor whose claim has not been placed in judgment a new situation is created. The creditor no longer has a personal demand against anyone, but he has acquired a right to look for payment to the property the decedent owned at his death, including the realty if necessary. This right is not technically a lien, but it is quite similar to a lien. It gives him who possesses it much the same means for his protection as though he had one. By seeing to it that the land when sold by the sheriff brings its full value, he can insure the application of the surplus over the mortgage debt to his own claim.” (p. 550.)
In this instance Mrs. Thomas had no interest in or lien upon the land in cases 2298 and 2299 when those actions were commenced, and of course she was not a party to them. On the day judgments were rendered in those cases she acquired her judgment lien on the land involved in those cases. By virtue of the statute her right to enforce her lien after the sale, was cut off by the sale as effectively as if she had been a party to the foreclosure suits. In that respect she was in the same position she would have occupied if she had been a party, and the proceeds of sale stood for the land. Combs had no equitable right to surplus as against Mrs. Thomas’ unsatisfied judgment lien, and had there been a surplus it could have been applied to satisfy the lien on motion of Mrs. Thomas for an order to that effect. The same principles and procedure would have applied if Mrs. Thomas had attended the sale and had bid a sum sufficient to satisfy the judgment of the Land Bank and her own judgment lien.
In the case of Pool v. Gates, 119 Kan. 621, 240 Pac. 580, Gates foreclosed second mortgages, and purchased the land at the sale. He bid the amount necessary to satisfy his judgments, plus a sum sufficient to cover advancements he had made to prevent foreclosure of superior mortgages. Gates proved these advancements, but it was held the surplus above the sum necessary to satisfy the judgments for which the land was sold should be paid to the landowner.
In the Pool case the writer concurred in the general proposition of law stated in the syllabus: foreclosure, sale, confirmation, debt satisfied, taxes and costs paid, surplus to debtor. This is the customary routine referred to in Blandin’s Adm’r v. Wade, 20 Kan. 251, 255, and cited in the majority opinion. The writer dissented from what he regarded as the unconscionable refusal to allow Gates, on application, to be reimbursed out of surplus for his advancements to protect Pool against foreclosure of first mortgages, and to protect Gates’ second lien. The abstract of record in the case shows that the judgment and order of sale required surplus to be paid into court, to be paid out as the court should direct. So the court by its own order had control over the surplus. The terms of the judgment and order of sale were not urged upon or considered by the court.
R. S. 60-3423 was cited as a basis for the Pool decision. It reads:
“If on any sale made as aforesaid there shall be in the hands of the sheriff or other officer more money than is sufficient to satisfy the writ or writs of execution, with interest and costs, the sheriff or other officer shall on demand pay the balance to the defendant in execution or his legal representatives.”
This is section 457 of the civil code of 1859, and has been carried in all subsequent revisions of the statutes. It applies only to cases in which there is a seizure or levy, in which the sheriff is vendor, acting under statutory power, and in which, as a consequence, the execution debtor may demand surplus of him. It has no application to judicial sales, and particularly to judicial sales made under judgment and order of the court reserving to the court itself disposition of surplus. This is demonstrated by the context.
The section is now a part of the article, framed by the revisors and adopted by the legislature of 1923, relating to executions. The subdivision deals with executions against property. The subdivision begins with R. S. 60-3403, which reads:
“Lands, tenements, goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided.”
R. S. 60-3423, already quoted, applies to sales made “as aforesaid.” Therefore, by every recognized rule of statutory construction, the meaning of the section, so far as it relates to sales of real estate, is to be determined by what is found between R. S. 60-3403 — “as hereinafter provided,” and R. S. 60-3423 — “any sale made as aforesaid.”
R. S. 60-3403 relates to lands, tenements, goods and chattels liable “to be taken”- — -that is, seized — on execution. R. S. 60-3404 relates to property bound from time of seizure. R. S. 60-3405 relates to dormancy of judgment. R. S. 60-3406 relates to the contents of a general execution on which the amount of debt, damages and costs for which judgment was entered shall be indorsed. R. S. 60-3407 relates to order of satisfaction when there is more than one writ. R. S. 60-3408 relates to levy, first on goods and chattels, and then levy on land. R. S. 60-3410 relates to levy on property claimed by third persons. R. S. 60-3411 relates to forthcoming bonds when property levied on is unsold. R. S. 60-3412 relates to notice of sale of personal property levied on. R. S. 60-3413 relates to levy on lands in certain cases, and appraisement. R. S. 60-3414 relates to limitation of lien on lands levied on.- R. S. 60-3415 relates to levies on property of certain public officers. R. S. 60-3416 relates to notice of sale of lands “taken on execution” — that is, seized. R. S. 60-3417 relates to prepayment of costs when the officer levies on goods, chattels, or land. R. S. 60-3418' relates to demand for fees referred to in R. S. 60-3417. R. S. 60-3419 relates to place of sale, and forbids bidding by certain persons. R. S. 60-3420 relates to alias executions for land levied on but not sold. R. S. 60-3421 relates to levy of several executions on separate parcels. R. S. 60-3422 relates to execution of deed. Then comes R. S. 60-3423, quoted above, relating to payment of surplus after “sale made as aforesaid,” that is, by the sheriff pursuant to taking, levy, or seizure.
There is no taking of or levy on or seizure of land in a mortgage-foreclosure suit. The sale is a judicial sale, made by the court, by one who acts substantially as agent of the court, and not under naked statutory power. Proceeds of a mortgage-foreclosure sale are not in the hands of the sheriff as such officer. Surplus is not in his hands, subject to demand by and payable on demand to the defendant in execution. Proceeds are in the hands of the court. Surplus is distributable only by the court, and the statute under consideration is no bar to distribution of surplus to a judgment lien holder in the situation Mrs. Thomas occupied. Observations in the opinion in Pool v. Gates, 119 Kan. 621, 624, 240 Pac. 580, based merely on the name “special execution,” are not apposite.
This is no new subject in this court. (Norton v. Reardon, 67 Kan. 302, 72 Pac. 861; Carter v. Hyatt, 76 Kan. 304, 307, 309, 91 Pac. 61; Wilden v. Duckworth, 83 Kan. 698, 702, 112 Pac. 606; Brewer v. Warner, 105 Kan. 168, 170, 182 Pac. 411; Moore v. McPherson, 106 Kan. 268, syl. ¶ 5, 187 Pac. 884; Bank v. Barons, 109 Kan. 493, 495, 200 Pac. 297.)
In the case of Norton v. Reardon it was necessary for the court to determine just what kind of sale a foreclosure sale is. To do so the court quoted, what is now R. S. 60-3401, defining executions as process; R. S. 60-3402, classifying executions into four kinds; R. S. 60-3406, specifying the command to the officer in executions against property; R. S. 60-3408, prescribing the duty of the sheriff under an execution against property; and R. S. 60-3416, requiring notice of sale of land taken on execution. These sections characterize the nature of the process under which sale of lands is made “as aforesaid.” Other sections of the statute were considered, authorities were examined and quoted, and it is sufficient for present purposes to quote the following from the opinion of the court:
“Those sections of the statute which provide for a levy of an execution on real estate of the judgment debtor before its sale by the officer can have no application to judicial sales ordered by the court.” (p. 306.)
For some purposes an order of sale may perform the function of a general execution. Thus, all that is necessary to keep a judgment alive is for the creditor to affirm vitality of the judgment by having process issued; levy and sale are not necessary. On this ground a majority of the court, including the writer, agreed that issuance of an order of sale would prevent a judgment from becoming dormant. (Watson v. Iron-works Co., 70 Kan. 61, syl. ¶ 2, opinion p. 66, 78 Pac. 156.) In all cases the reason for and the operation of the statute must be considered. Such considerations demonstrate the soundness of the decision in Norton v. Reardon. Within eighteen years next succeeding rendition of the decision in Norton v. Rear-don it was approved five times, and the decision has now stood for twenty-eight years, unmodified by statute or judicial decision.
The opinion in the Pool case quoted a part of R. S. 60-3107, as follows:
“In actions to enforce a mortgage, ... no real estate shall be sold for the payment of any money . . . except in pursuance of a judgment of a court of competent jurisdiction ordering such sale.” (Pool v. Gates, 119 Kan. 621, 625, 240 Pac. 580.)
The entire section reads as follows:
“In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due, as well to the plaintiff as other parties to the action having liens upon the mortgaged premises by mortgage or otherwise, with interest thereon, and for the sale of the property charged and the application of the proceeds, or such application may be reserved for the further order of the court; and the court shall tax the costs and expenses which may accrue in the action, apportion the same among the parties according to their respective interests, to be collected on the order of sale or sales issued thereon. When the same mortgage embraces separate tracts of land situated in two or more counties, the sheriff of each county shall make sale of the lands situated in the county of which he is sheriff. No real estate shall be sold for the payment of any money, or the performance of any contract or agreement in writing, in security for which it may have been pledged or assigned, except in pursuance of a judgment of a court of competent jurisdiction ordering such sale.” (R. S. 60-3107.)
This section had no relation whatever to the controversy, and the quotation in the Pool opinion does not correctly represent it. The concluding sentence is complete in itself, and relates solely to method of enforcing security for payment of money or performance of contract. Its sole purpose was to preclude any form of appropriation of land pledged or assigned in any way as security, to payment of the money or performance of the contract so secured, except appropriation by judicial sale. An illustration of application of the provision is found in the case of LeComte v. Pennock, 61 Kan. 330, 336, 59 Pac. 641.
In the case of Kueker v. Murphy, 86 Kan. 332, 120 Pac. 362 (1912), the court, speaking through the present chief justice, said:
“The purpose of the redemption law is to prevent the sacrifice of the debtor’s land, make it discharge his debt to the extent of its value, and to give other creditors a chance to bid its full value so as to secure something on their claims.” (p. 334.)
In the case of Sigler v. Phares, 105 Kan. 116, 181 Pac. 628, the court said:
“In order fully to protect himself against the loss of the fruits of his lien he was required to make a bid at the sheriff’s sale (or see that one was made) larger than the amount of the first-mortgage debt, . . .” (p. 120.)
In the opinion in the case of Moore v. McPherson, 106 Kan. 268, 187 Pac. 884, the court said:
“The only way the bank could protect itself was by seeing to it that the property sold for some figure approximating what it was worth, or for enough to satisfy its second lien.” (p. 273.)
If Mrs. Thomas had exercised her privilege, and had bid at the sale an amount above the superior lien for which she was willing to hold the land, she would have received the amount of her bid, with interest and costs, in case of redemption. If there were no redemption, she would have received a sheriff’s deed.
In the brief for Mrs. Thomas it is said:
“Neither the decree nor the statute made it necessary for Thomas to bid at the foreclosure sale as her last recourse in order to preserve her rights against the property.”
Of course, neither the decree in the Land Bank cases nor the statute prescribed what Mrs. Thomas should do. She was privileged to do nothing. But she was also privileged to bid at the sale, and so protect her lien, if the land were worth more than the superior lien. If she did nothing, her lien was discharged by the sale.
In support of her contention, Mrs. Thomas cites the cases of Shrigley v. Black, 66 Kan. 213, 71 Pac. 301, and State Bank v. Marty, 121 Kan. 753, 250 Pac. 321.
In the case of Shrigley v. Black there was a mortgage on land owned by life tenants and remainderman. Taxes became delinquent, a tax deed was issued, and the tax-deed holder brought ejectment against the life tenants and remainderman. The mortgagee was not made a party. The tax deed was set aside, the tax-deed holder was given a lien for taxes, and the land was sold to satisfy the lien. The remainderman purchased the interests of the life tenants. Afterwards, and a few days before expiration of eighteen months from date of sale, the then owner in fee redeemed. Meanwhile the mortgagee ha'd commenced an action to foreclose, and the owner in fee claimed the mortgage was cut off by redemption. While the opinion discussed the redemption law, all that was said on the subject was unadulterated dictum, and the case was fully disposed of by the first paragraph of the syllabus:
“A mortgagor of real estate, being under duty to his mortgagee to pay taxes on the mortgaged property, cannot defeat the mortgage by any form of a lien growing out of taxes which he has suffered to become delinquent; nor will his grantee be permitted to accomplish a like result by means of delinquent taxes, or a lien for the same, existing at the time the property was conveyed to him.” (Shrigley w. Black, 66 Kan. 213, syl. ¶ 1, 71 Pac. 301.)
The case of State Bank v. Marty has no application to the present controversy. In the latter case the landowner made a mortgage of land, his only mortgageable interest in which consisted of right to redeem from a foreclosure sale. Then he redeemed, and tried to defeat the mortgage. In the opinion the cases of Case v. Lanyon, Gille v. Enright, Sigler v. Phares, Moore v. McPherson and Johnston v. Wear were distinguished. Right of redemption is a mortgageable interest. It was distinctly held right of redemption was mortgaged, and the owner was privileged to mortgage his right of redemption by virtue of R. S. 60-3455, providing for assignment or transfer of right of redemption; consequently it was held redemption inured to benefit of the mortgagee.
It is not necessary to review other decisions of this court.
In the foregoing it has been said that inferior liens are cut off by .foreclosure sale. The statement was made, of course, with respect to right to sell again. If Mrs. Thomas had become purchaser at the sale, or if she had been permitted to redeem from the sale which was made, her interest would have been perserved and protected. As it was, her lien was discharged when the landowner redeemed within the twelve months’ period from the sale made under the superior lien.
Mrs. Thomas contends her lien could be cut off by deed only. This is simply to deny that an act of the legislature has any force. A multitude of cases from other states are cited. Neither R. S. 60-3460 nor anything equivalent to it is contained in the redemption law of any state whose decisions are cited, and the great bulk of the brief is devoted to discussion of matter rendered obsolete in this state by the statute.
Mrs. Thomas speaks of vested rights under her judgment. The redemption statute was enacted in 1893. Her judgment was obtained in 1928, and her rights were such as accrued to her under the law as it stood when her judgment was obtained. The law gave her a lien. She was bound to know her lien was an inferior lien, subject to discharge by a sale under the superior lien, and she was required to be diligent in watching the proceedings to enforce the superior lien if she desired to protect her own. She had the right to issue execution on her own judgment. The foreclosure sale was made after public notice, which she was obliged to anticipate would be given. She had the right to bid at the sale, and so protect her lien. She had the right to participate in distribution of surplus on application if the land sold for more than the first lien. She had the right to redeem, subject to the landowner’s preemptive right. These were her “vested rights.” She took no step to protect her interest, and she was forbidden by a statute thirty-eight years old, enforced in repeated decisions of this court, and the policy of which is and always has been well understood, to sell the land again.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to require the state auditor to audit a voucher in favor of C. S. Loper and draw his warrant therefor upon the state treasurer in payment for services rendered the state under the direction of the attorney-general in the case of the State of Colorado v. The State of Kansas and the Finney County Water Users Association, pending in the supreme court of the United States. The question raised is whether there is an appropriation from which the claim can be paid, and that depends upon whether an attempted veto by the governor of certain items of an appropriation bill is effective.
The legislature of 1931 (Laws 1931, ch. 8), in making appropriations for the attorney-general’s department, included this item:
“For the purpose of defraying the expenses of contesting the suit of the State of Colorado v. The State of Kansas and the Finney County Water Users Association (unexpended balance at the end of the fiscal year, June 30, 1931, reappropriated for the fiscal year of 1932 and any unexpended balance at the end of the fiscal year 1932 is hereby reappropriated for the fiscal year of 1933), for 1931, $5,000; for 1932, $5,000.”
The bill carrying this item regularly passed both houses of the ■legislature and was duly presented to the governor. In due time the governor signed the bill and returned it to the house of representatives with this notation:
“Executive Department, March 16, 1931.
“To the House of Representatives:
“I am returning herewith house bill No. 663 signed, but with objections to the following items:
“The two items of $5,000 each for 1932 and 1933 for paying the expenses of contesting the suit of the State of Colorado v. State of Kansas and the Finney County Water Vserd Association;
“The item of $900 to the state architect for the year 1931 for mechanical and drafting engineer. Harry H. Woodring, Governor."
The question for our determination is whether this is an effective veto of the items referred to. Our constitutional provision (art. 2, § 14) relating to the governor’s veto of a bill, or of separate items of an appropriation bill, reads as follows:
“Every bill and j oint resolution passed by the house of 'representatives and senate shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same. If, after such reconsideration, two-thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a law; but in all such cases the vote shall be taken by yeas and nays, and entered upon the journals of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to- the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law. If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such-items, while approving the other portion of the bill; in such case he shall append to the bill, at the time of signing it, a statement of the item or items to which he objects, and the reasons therefor, and shall transmit such statement, or a copy thereof, to the house of representatives, and any appropriations so objected to shall not take effect unless reconsidered and approved by two-thirds of the members elected to each house, and, if so reconsidered and approved, shall take effect and become a part of the bill, in which case the presiding officers of each house shall certify on such bill such fact of reconsideration and approval.”
We are not concerned in this case with what is necessary to be done by the governor in order to veto a bill, for the objections of the governor here under consideration did not go to the bill as a whole. He signed the bill. It carried many items of appropriation. He made objections to but three of them. We are concerned here with that part of the constitution which pertains to a bill presented to the governor which contains several items of appropriation of money. The provision with respect to that is:
“. . . he may object to one or more of such items, while approving the other portion of the bill; in such case he shall append to the bill, at the time of signing it, a statement of the item or items to which he objects, and the reasons therefor (italics ours) and shall transmit such statement, or a copy thereof, to the house of representatives, . . .”
It is obvious the governor did not fully comply with the constitutional provision. He stated that he objected to certain items, but he did not state the reasons therefor. Is it essential to an effective veto of an item in an appropriation bill that the governor state his reasons for his objection? It should be a sufficient answer to this question to say that our constitution specifically requires that the reasons for the objection be stated. Such has been the uniform practice in this state as shown by our legislative journals. Our federal constitution (art. 1, § 7) contains a provision with respect to vetoing a bill similar to that in our constitution, and it has been the uniform practice of the presidents, in vetoing an act of congress, to state reasons for the veto. (See “Messages and Papers of the Presidents.”) There is a reason for this constitutional requirement. The reasons stated by the executive for his veto of a bill, or specific items, must be spread upon the journal, and they form the basis of further consideration of the bill or items for the purpose of determining whether, notwithstanding the objections and reasons therefor given by the executive, the legislature should enact the measure or approve the items by the necessary two-thirds vote. (See 1 Tucker on United States Constitution, § 213.)
In “Veto Power” by Mason, a Harvard historical monograph, tracing the development and operation of the veto power in the government of the United States in 1889, the use of the veto power in England and in the American colonies is discussed. It is pointed out that what was regarded in this.country as the abuse of the veto power by the crown was so universally felt that the first clause in the Declaration of Independence set forth as a reason for the sepa ration of the colonies from the mother country, “He [the King] has refused to assent to laws most wholesome and necessary for the public good.” The exercise of the veto power by the colonial governors was even more objectionable than that of the crown. As a result of this feeling in the state 'governments which were formed after the breaking out of hostilities with England the veto power was greatly limited. In several states a commission took the place of a governor. In no state but Massachusetts did the governor-have even a qualified veto on acts of the legislature, and that authority was not given until 1780 (§§ 7 and 8), and in Appendix E it is noted that (in 1890) in four states — Rhode Island, Ohio, Delaware, North Carolina — there is no provision for the revision of a bill by the governor. In each of the other states the constitution gave to the governor veto power, but in only one of them — Georgia—could the governor withhold his signature without stating reasons. In discussing the federal constitution it is said (§ 102):
“May a bill be vetoed without stating reasons? All of the presidential vetoes have been accompanied by the reasons for the refusal to sign. Indeed it is difficult to see how any other plan could be followed, since the constitution requires that if the president fails to approve a bill he shall return it, with his objections, to that house in which it shall have originated. Furthermore, it is maintained in a pamphlet by Mr. J. H. Benton, Jr., that the objections assigned must be objections to the intrinsic merits of the bill. He quotes at length from the proceedings of the federal convention, from the Federalist, and from the writings of Madison and Hamilton, to show that the president’s authority was similar to that of the council of revision in the state of New York, and that this council had power to state objections only to the intrinsic merits of the bills brought before it. This restriction would narrow the plain wording of the constitution by an appeal to the practice of a body unknown to the constitution, and equally unknown to English parliamentary practice. The constitution sets no limit upon the nature of the objections stated by the president, nor is it generally assumed that there are any limits. If there be none, the president has a constitutional right to veto a bill simply because undue influence had been used in securing its passage, or for any other reason that seems good to him, even though his objections may have no reference to the contents of the measure.”
In Fulmore v. Lane, 104 Tex. 499, 140 S. W. 405, it was said:
“The duty of defining the power of the executive in relation to the exercise of the veto privilege is, as suggested by Chief Justice Woods in the case of State v. Holder, 76 Miss. 177, 23 So. 643, one of difficulty and delicacy. The veto power of the executive under our system of government is not inherent in such officer as a legislative function, but is a power confided in him by the supreme authority of the state, and in exercising this function, while he is not confined to rules of strict construction, he nevertheless must look to the constitution for the authority to exercise such power. The principle here enunciated has been aptly put by the supreme court of Illinois, in the case of Field v. People, 3 111. 79, in discussing the question of the governor’s veto power: ‘In deciding this question, recurrence must be had to the constitution. That furnishes the only true rule by which the court can be governed. That is the charter of the governor’s authority. All the powers delegated to him or in accordance with that instrument, he is entitled to exercise, and no others.’ ” (p. 511.)
The veto power is ordinarily regarded as being legislative as distinct from executive. (See 25 R. C. L. 882; 12 C. J. 900, and cases there cited.) In this case we need not be greatly concerned with its classification in that regard. Originally it reposed in the people, as did other governmental powers. In framing a constitution the people can vest it in the governor, or in such other officer or governmental body as they choose, and with such limitations on its use as they deem wise. There have been many decisions, first and last, by the courts of last resort in various states in the use of the veto power by the governor, where, by the constitution, such power was vested in him. Naturally these decisions vary, depending largely upon the wording of the constitutional provision under consideration and the varying phases of the question presented. But underlying them all this basic principle is consistently adhered to, that the constitution is the governor’s guide. It measures the extent and limits of his power and authority. So, when the question arises whether the acts of the governor constitute an effective veto of a bill, or of separate items or provisions in a bill, the simple question arises: What does the constitution authorize or permit him to do? And, second, does his act conform thereto? (See Weis v. Ashley, 59 Neb. 494, 81 N. W. 318; Elmen v. State Board of Equalization and Assessment, 231 N. W. 772 [Neb.]; Pickle v. McCall, 86 Tex. 212, 24 S. W. 265; State v. Holder, 76 Miss. 158, 23 So. 643; Strong v. People, ex rel., 74 Colo. 283, 220 Pac. 999; Fergus v. Russel, 270 Ill. 304, 110 N. E. 130; The People v. Brady, 277 Ill. 124, 115 N. E. 204; Regents of the State University v. Trapp, Auditor, 28 Okla. 83, 113 Pac. 910; Peebly v. Childers, 95 Okla. 40, 217 Pac. 1049; Porter v. Hughes, 4 Ariz. 1, 32 Pac. 165; Callaghan v. Boyce, 17 Ariz. 433, 153 Pac. 773; Fairfield v. Foster, 25 Ariz. 146, 214 Pac. 319; Black & White T. Co. v. Standard Oil Co., 25 Ariz. 381, 218 Pac. 139; Texas Co. v. State, 31 Ariz. 485, 254 Pac. 1060; Woodall v. Darst, 71 W. Va. 350, 77 S. E. 264; Hartness v. Black, 95 Vt. 190, 114 Atl. 44; Erskine v. Pyle, 51 S. D. 262, 213 N. W. 500; State, ex rel. Jamison, v. Forsyth, 21 Wyo. 359, 113 Pac. 521; Lukens v. Nye, 156 Cal. 498, 105 Pac. 593; Mills v. Porter et al. [Veto Case], 69 Mont. 325, 22 Pac. 325; Dickinson, Auditor, v. Page, 120 Ark. 377, 179 S. W. 1004; Wheeler v. Gallet, 43 Ida. 175, 249 Pac. 1067; Cammack, Attorney-general, v. Harris, 234 Ky. 846, 29 S. W. [2] 567; State v. Grant Superior Court, 172 N. E. 897 [Ind.].)
This list is not intended to be complete. Our own cases, in so far as they touch the question at all, are to the same effect. (State v. Whisner, 35 Kan. 271, 10 Pac. 852; State v. Sessions, 84 Kan. 856, 115 Pac. 641; State, ex rel., v. City of Salina, 108 Kan. 271, 194 Pac. 931; State, ex rel., v. Ryan, 123 Kan. 767, 256 Pac. 811. See, also, The Pocket Veto Case, 279 U. S. 655.)
Defendant argues that the item here in question cannot be regarded as having received the approval of the governor. The point is not well taken. The-governor signed the bill, which act, in and of itself, registers his constitutional approval of all the items unless he registers his disapproval of one or more of the items in the manner provided in the constitution. This he did not do. Under the plain wording of the constitution his objection to the items, with his reasons therefor, constitute an effective veto of such items. Nothing less than that will accomplish the purpose. A similar question arose in West Virginia, -under a constitutional provision quite like ours. It was there said (May v. Topping, 65 W. Va. 656, 64 S. E. 848):
“The communication of his disapproval, with his reasons therefor, is the disapproval itself. The obligation upon the governor to communicate his disapproval of an item, with his reasons therefor, to the house in which the bill originated, is a mandatory one to bring about the qualified veto that is given him in such instances. Unless he communicate as directed by this constitutional provision he approves and does not disapprove. The last clause of the section clearly discloses such interpretation. It says: ‘Any item or items so disapproved shall be void, unless repassed by a majority of each house.’ What do the words ‘so disapproved’ mean? The use of these words makes one to inquire: How disapproved? Clearly they relate not simply to disapproval in the mind of the governor, but to some act of disapproval, some manner of disapproval. That act or manner of disapproval, provided for just above these words, and to which _'so disapproved’ clearly relates, is by communication with reasons to the house in which the bill originated. ‘Any item or items so disapproved shall be void, unless repassed.’ The very connection between the words ‘so disapproved’ and ‘unless repassed’ shows that the constitution intends that the disapproval of the governor, to be a dis approval at all, must be communicated to the house of the legislature in which the bill originated, so that the legislature may again act upon the item; so that it may repass it, if the governor’s reasons for disapproval do not persuade it to do otherwise, by a majority of each house according to the rules and limitations prescribed. Only by being ‘so disapproved’ is the item declared void by the constitution. Disapproval in any other form or manner does not affect it.” (p. 659.)
Generally it is held that when the governor does some act tending to indicate his disapproval of a bill or an item or provision therein, but does not do so in conformity with the requirements of the constitution, his act is ineffectual, and in some cases is spoken of as a nullity. (See cases above cited, particularly State v. Holder, supra; Regents of the State University v. Trapp, Auditor, supra; Callaghan v. Boyce, supra; State, ex rel. Jamison, v. Forsyth, supra.)
The result is that the attempted disapproval of certain items of the bill in question was ineffectual to constitute a veto of those items under our constitution, and the bill as a whole, as presented to the governor and as signed by him, became a law.
The bill in question made $5,000 of the appropriation available for the fiscal year 1931, the unexpended balance to be reappropriated for 1932. The governor’s attempted disapproval did not mention the- portion of the appropriation available for 1931, hence, if we examine the matter critically, the voucher here in question should be audited in any event. But we do not care to base our decision upon that; we prefer to base it upon the broader question as above considered. The result is, judgment must be entered for plaintiff. The writ prayed for should issue.
It is so ordered.
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The opinion of the court was delivered by
Burch, J.:
The action is an original action of mandamus in this court to compel the probate judge of Graham county to set aside a temporary order which he made in an action, pending' in the district court of Graham county, restraining sale of real and personal property on execution, and to compel the sheriff of Graham county to execute the writ which the probate judge enjoined him from executing.
Richardson purchased mortgaged land in Nemaha county, and assumed and agreed to pay the mortgage. The mortgage was foreclosed in Nemaha county. Richardson was personally served in Graham county, and a personal judgment was rendered against him in favor of Amy O. Rafter. The. land did not sell at foreclosure sale for enough to satisfy the judgment, and execution was issued against Richardson and sent to the sheriff of Graham county. By virtue of the writ the sheriff seized real and personal property which he advertised for sale. Richardson commenced an action in the district court of Graham county to enjoin execution of the writ on the ground the personal judgment against him was void. In the absence of the district judge the probate judge issued a temporary order restraining execution of the writ, and set the hearing in the district court for February 2, 1931. The sheriff made the following return on the writ of execution:
“December 25, 1930. I was served with a restraining order enjoining any sale under this execution until further orders. I hold my levy intact upon all property levied upon.”
On January 13, 1931, Amy O. Rafter commenced the action in this court. Richardson moved to quash the alternative writ.
There was no excuse for the action in this court. Concede that the petition for injunction in the district court of Graham county did not state a cause of action and the restraining order was wrongfully issued; nevertheless, the petition presented a question for judicial determination, the district court had jurisdiction to decide the question, the probate judge had jurisdiction to issue the restraining order, and the plaintiff here had a perfectly plain and adequate remedy in the ordinary course of law to obtain dissolution of the restraining order. (R. S. 60-1702.) Mandamus issues to compel performance of an act which the law specially enjoins as a legal duty. (R. S. 60-1701.) The probate judge had no power to vacate the restraining order after it had been issued, and rests under no legal duty to do so. The sheriff who was enjoined was obliged to obey the injunction, and mandamus does not lie to compel him to perform an act which he was enjoined from doing. Neither he nor his successor, the present sheriff, is refusing to do any duty enjoined by law.
The motion to quash, is allowed.
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The opinion of the court was delivered by
Sloan, J.:
In this action'the appellee sought to recover damages caused by pollution of the fresh water supply to a farm owned by her by reason of the drilling, casing and plugging of oil and gas wells by the defendants. Before trial the action was dismissed as to all defendants except the Shell Petroleum Corporation. Judgment was rendered for the appellee on the verdict of the jury against the Shell Petroleum Corporation, and it appeals.
The appellee in her amended petition alleged that she is the owner of a well-improved farm in Cowley county; that prior to the drilling of oil and gas wells by the appellant there was “an abundant, never-failing supply of pure, fresh water” from a well ninety feet deep on the farm; that the fresh-water sands o.r veins from which the well drew its water are the only known fresh-water-bearing sands or veins on the farm supplying fresh water in sufficient quantities for domestic and stock use on the farm; that the appellant completed drilling two oil and gas wells, one on land adjacent to appellee’s farm on the north about December 1, 1927, and the other on the appellee’s farm' about February 1,1928, the depth of each well being approximately 2,005 feet; that in drilling the oil and gas wells the appellant penetrated various strata or veins containing salt water and also the sands or veins containing the fresh water which furnished the supply of fresh water for the well of appellee; that in so doing the appellant failed to exercise care in properly casing, plugging and protecting the sands or veins containing salt water so as to prevent the escape of salt water from the salt-water sands or veins into the fresh-water sands or veins, and failed to exercise care in properly casing, plugging and protecting the sands or veins containing fresh water from being contaminated by the escaping salt water; that because of such failure the'fresh-water sands or veins have become contaminated and polluted and are ruined as a source of fresh water, and the water well of the appellee is entirely ruined and destroyed as a fresh-water well, and is totally unfit and unsafe to use for human beings, for live stock or poultry, or for irrigating flower and vegetable gardens; and that such condition of the water is permanent in character.
The appellant contends that the appellee failed in her proof and that there is no substantial evidence to support the verdict of the jury. This requires an examination of the evidence.
The appellee was the owner of the northwest quarter of section 19, township 31, range 3, in Cowley county. The dwelling and other improvements were located near the northwest corner of the farm. In 1925 the well in question was drilled about 50 feet east of the house on the highest elevation on the farm, from which the land sloped to the west and south and abruptly to the east. The man who drilled the well testified that he drilled a 6-inch hole 72 feet deep, at which point he struck rock; that the well was cased with 5%-inch casing; that the casing rested on the top of the rock; that a 2-inch hole was then drilled through 16 feet of rock, where he struck a vein of water in the rock; and that after drilling 2 feet further he found sand and gravel and a good supply of fresh water. A number of witnesses testified that the water from the well was fresh until the completion and operation of certain oil wells by the appellant. Prior to the drilling of any oil well another fresh-water well had been drilled near the southwest corner of appellee’s farm.
The Harness farm lies immediately north of appellee’s land. In the fall of 1927 the appellant drilled and completed an oil well near the southwest corner of the Harness farm, which was 875 feet north of appellee’s water well; a structure carrying salt water was encountered at about 1,200 feet. An oil well, drilled by Derby some distance south and west of the appellee’s water well, was completed July 10, 1928; a salt-water pond was made near the Derby well in the fall of 1928. In March, 1928, the appellant drilled an oil well on the appellee’s farm 455 feet northwest of appellee’s water well and encountered salt water at about 255 feet. At about the same time the Johnson & Vicker well No. 4 was completed 480 feet northwest of appellee’s water well; the record does not show any direct evidence of salt water being encountered in drilling this well, but discloses evidence tending to show that it was properly filled and plugged.
Evidence was introduced which tended to show that a few days after the completion of the Harness well by the appellant the water from two water wells on the Harness farm north of the oil well, one 90 to 100 feet deep and the other 48 feet deep, and the water from the appellee’s well tasted of salt, and that following the completion of the oil well on the farm of the appellee the water from her water well became so salty that it was unfit for use, and the well in the southwest corner of her farm also tasted of salt. The appellee also introduced evidence to show the value of her land both before and after the claimed pollution of the water.
The theory of the appellee is that the water supply on the farm was under 16 feet of rock; that the well was protected by casing from any seepage from the top of the ground; and that the water vein under the rock was polluted by the appellant in drilling and operating the two oil wells.
The appellant introduced testimony which tended to show that its oil wells, of which complaint is made, were drilled, cased, filled and plugged by the best known methods in the industry, and that the appellee’s water well did not produce good water prior to the drilling and operation of the oil wells. A geologist testified that the rock formation in that community contains probably the worst water from the standpoint of mineralization in the state, and is distinguished by the large amount of salt and gypsum it contains; and that the wells which obtain water from this formation are invariably highly mineralized.
The evidence, although not strong, fairly supports the appellee’s theory of the case and was sufficient to support the verdict. This court cannot weigh conflicting evidence. The matter of determining the weight of evidence is the exclusive function of the trial court. (Baldwin v. Soldiers’ Compensation Board, 117 Kan. 129, 230 Pac. 82; Wilson v. Stafford, 124 Kan. 382, 384, 260 Pac. 627; Harrison v. Lyon, 126 Kan. 705, 271 Pac. 395.)
It is argued that the trial court erred in instructions three, four, five and six given to the jury. These instructions are as follows:
“III. It was the duty of the defendant under the law to so operate and plug its oil wells as to prevent the escape of salt water into the plaintiff’s premises or in the water-bearing strata thereon to the damage of the plaintiff. And if It failed to so do it would be liable in damages to the plaintiff.
“IV. The burden of proof is upon the plaintiff, and before she can recover in this action she must prove by the evidence and by the preponderance thereof that the defendant so operated or plugged the wells or well in controversy as to permit salt water to penetrate the fresh-water-bearing strata upon the plaintiff’s land, and that the plaintiff was damaged by reason thereof, the amount of such damage. And if she has so proven, then she would be entitled to recover from the defendant the amount of such damage. If she has failed to so prove, then she would not have the right to recover anything from the defendant.
“V. There has been some evidence to the effect that other companies than the defendant company drilled and plugged oil wells in the vicinity of plaintiff’s land; and you are instructed that even though you might believe that other companies were negligent and careless and permitted salt water to enter into the fresh-water-bearing strata of plaintiff’s land, such fact would not relieve the defendant of liability, provided you find from the evidence and by a preponderance thereof that the manner in which the defendant operated or plugged its oil wells contributed to the spoiling of plaintiff’s freshwater supply. That is, each and every company which directly contributed or contributes to the polluting of plaintiff’s fresh-water supply, if it was so polluted, would each be liable to the plaintiff for any damage suffered by reason thereof.
“Of course, if you should find from the evidence that the defendant, in the operating or plugging of its wells, did not contribute to the pollution of plaintiff’s water supply, then the plaintiff could not recover from the defendant, even though her water supply was impregnated by the operation of other companies.
“VI. The questions for you to determine are: Did the defendant, in the operation or plugging of the two wells in controversy, permit salt water to impregnate the plaintiff’s fresh-water supply? Second, Was she damaged thereby, and, if so, how much?”
It is first contended that these instructions were erroneous for the reason that it was necessary for the appellee to prove that the ap pellant was negligent in some manner in drilling, casing or plugging the well. The answer to this contention is found in the statute, R. S. 55-118, which is as follows:
“If any well or other excavation be put down to or through any vein or strata containing salt water or .water containing any minerals in appreciable quantities, it shall be the duty of the owner or operator, driller, or person putting down such well or excavation to case or plug such well or excavation in such manner as to exclude all salt water or water containing minerals in appreciable quantities from both upper and lower veins or strata holding water suitable for domestic purposes.”
The action is based on this statute, and negligence is not a necessary element of appellee’s case. (Hazelwood v. Mendenhall, 97 Kan. 635, 97 Pac. 636; Roman v. St. Louis-S. F. Rly. Co., 120 Kan. 585, 245 Pac. 115; Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762.)
It is further argued that, in the instruction j.ust quoted, the court ignored the fact that negligence was alleged in the pleadings. The allegations with reference to negligence were redundant and immaterial and were properly treated by the court as surplusage.
Other objections are made to the instructions given by the court to the jury, all of which have been carefully examined and are found to be without merit. The jury was fully and correctly instructed concerning the law of the case.
It is urged that the court erred in refusing to give instructions requested by the appellant. A part of them were drawn on the theory that negligence was an element of appellee’s case. We have carefully examined all requested instructions and find that they were properly refused.
The appellant claims error in the court’s refusal to submit to the jury requested interrogatories. They were not material to the issues involved, and the court properly refused to submit them.
It is contended that the court erred in refusing to require the jury to answer more specifically interrogatory number six. The question and answer given were as follows:
“VI. Do you find that water-bearing sands on the Martin [appellee’s] farm have by salt water become permanently unfit for use? A. Up to present date.”
This answer, when considered with the general verdict, was sufficiently definite. (Greiner v. Greiner, 129 Kan. 435, 283 Pac. 651.)
It is urged by the appellant that the court erred in permitting the jury to taste the contents of a bottle containing .a deposit which, it was testified, was obtained from boiling down two quarts of water from appellee’s well. It was testified on behalf of the appellee that it tasted “very much like salt.” When the bottle was handed to the jury one of the jurors tasted its contents,.and while he was passing it to the next juror objection was made. The court overruled the objection and permitted the other members of the jury to taste it. This was not error. (State v. Jackson, 121 Kan. 711, 249 Pac. 688.)
We have examined the record, and no error in the evidence, instructions, verdict or judgment is disclosed.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
In this action C. F. Hough recovered a judgment for damages in the sum of $1,850 against the Atchison, Topeka & Santa Fe Railway Company in a crossing accident. Defendant appeals.
Plaintiff was personally injured and the automobile in which he was riding was damaged at a railroad crossing in the city of Mulvane, by an act of the defendant in backing a string of freight cars against him on a dark night while he was driving over the tracks. He alleged that the defendant negligently failed to have a light of any kind on the advancing car that struck him; that there was no brakeman or flagman at the crossing to give warnings to motorists or travelers; that its cars were not equipped with warning devices properly lighted to give persons using the crossing notice of the approach of cars; that those operating the cars failed to sound a bell or whistle to warn the plaintiff of the approach of the string of cars in the nighttime; that nothing was done by defendant to ascertain whether plaintiff or anyone else was passing over the crossing when the cars approached; that the crossing was not properly lighted, and that on the whole defendant failed to use reasonable care to protect travelers on the highway from accidental injury. Defendant denied that its negligence caused the injury sustained and that the injurious results of the accident were caused by the negligence of the plaintiff in failing to take care for his own safety.
It appears that on the night of the accident his wife and another lady had driven in an automobile to a neighboring town to attend a club meeting, and as they had not returned at midnight, plaintiff in another automobile started out to discover the cause of the delay. He drove out in his automobile in the search, and had not gone far when he met his wife returning, whereupon he turned about and followed her into Mulvane. On reaching the crossing, what was called the California fast train was on one of the six tracks that crossed that street, and there was a brakeman or flagman there with a lantern flagging the crossing. He signaled plaintiff’s wife to stop and she and the plaintiff brought their cars to a standstill, and shortly the train backed away from the crossing, and the flagman, climbing on the train, disappeared.. There is testimony to the effect that plaintiff .and his wife looked up and down the railroad tracks and saw no indication of trains or cars approaching, whereupon the plaintiff’s wife drove her automobile across the tracks safely and plaintiff, who was about forty feet behind her, started over the crossing when a string of nine cars was shoved out of the darkness without lights, the sounding of a whistle or ringing of a bell, and struck plaintiff’s automobile.
The testimony shows that the night of the accident was a very dark one. There was what is called a wigwag appliance near the crossing which, it is conceded, was in operation at the time of the accident and on which there was a dim red light and a signal gong ringing. There were no lights near the crossing. The jury decided in favor of the plaintiff and made findings as follows:
“1. Did the plaintiff see the wigwag lights and gong in operation before he drove on the tracks? A. Yes.
“2. As the plaintiff crossed the several tracks in question was the wigwag red light burning and the signal gong ringing? A. Yes.
“3. Did plaintiff, after crossing first track from west side, stop at any time before accident occurred? A. No.
“4. After the plaintiff had started across the tracks and before driving upon the track where the accident occurred, if he had looked, could he have seen a string of freight cars backing south on said track? A. No.
“5. If your answer to the preceding question is in the negative, state what prevented him seeing the approach of said string of box cars before he drove upon the track. A. Insufficient light.
“6. Was the plaintiff well acquainted with the crossing in question and the general use to which defendant put its tracks at that place? A. Yes.
“7. Could the plaintiff have stopped his car within three feet as he was approaching the track where the accident occurred? A. Yes.
“8. If you find the defendant was negligent in such a way as tq cause the plaintiff injuries, state what act or acts, omission or omissions on the part of the defendant constituted such negligence. A. Insufficient light, no flagman at crossing and no visible light on approaching car.”
The principal question presented by the defendant is that the injury and loss sustained by plaintiff was due to his own negligence. The negligence attributed to plaintiff is based mainly on the fact that the wigwag was in operation and the gong thereon ringing when plaintiff undertook to drive across the tracks laid over the street. It is argued that the wigwag and gong in operation was a notice to plaintiff that there was a train in the vicinity and that he should have waited until the bell stopped ringing. The wigwag with a bell ringing is not always a certain signal that a train is approaching a crossing or that there is a present danger in passing the crossing. A moving or standing train in any part of the block would start the operation of the bell and continue it as long as the car was within the zone. The attachments were such that a train standing or moving in the zone as much as 1,200 feet away from the crossing would cause the ringing of the bell, and the appliance might be in operation a considerable time without a train approaching the crossing or even an intention to propel' it over the crossing. The ringing of that bell was, of course, notice to the traveler that a train was moving or standing somewhere within the block, and warned him to look out for trains approaching the crossing, but did not require him to wait there indefinitely while the bell was ringing. The sight of a railroad track is an admonition to a traveler to look out for his own safety before entering upon the crossing, and likewise the wigwag was a warning, but if the train is left standing in the zone of the automatic wigwag and bell, how long should the traveler wait before attempting to cross? It appears that shortly before the accident the train crew operating the string of cars which struck plaintiff’s automobile had left the cars and gone to lunch. If the cars they were operating were left within the block and the bell was continually ringing for a half hour, while the crew was eating lunch, would it be regarded as a reasonable requirement that plaintiff should wait for the crew to return and move the cars over the crossing? The ringing of the bell may, as we have seen, constitute a warning of danger. It cannot be regarded as conclusive of the contributory negligence of plaintiff precluding a recovery. In Frank v. Reading Co., 297 Pa. 233, it was said:
“While the ringing of a bell at a crossing would no doubt warn a driver of danger, it cannot be taken as a fact concluding an injured person’s right to recover. Its presence in operation does not relieve the carrier from giving the customary notice of the approaching train. These bells ring from other causes. They may be set off by a shifting movement of a train as well as by a train that has passed or is about to pass, or by a short circuit, or again by any train that is within the electrical contact on either side. Here defendant’s witness says the train on the siding had started the bell, though it had not passed the crossing. The bell was ringing before and after the train causing the injury went by. For these reasons the ringing of a bell at the crossing does not give adequate and certain warning of the approach of a train, on which the traveling public has a right to depend. (Gerg v. P. R. R. Co., 254 Pa. 316, 320.) Evidence as to ringing of crossing bells may be shown as proof of contributory negligence, but is ordinarily for the jury. Such evidence cannot be accepted as showing that defendant has discharged its duty, nor is it conclusive that a pedestrian or a driver must know a train is coming and should be governed accordingly. Here there is no evidence to show the ringing of this particular bell came from the approach of the train that caused the accident.” (p. 237.)
Before entering the crossing it was incumbent on the plaintiff to exercise vigilant care for his safety, a care commensurate with the perils of the situation. Plaintiff, however, had a right to presume that defendant would give the customary warnings at a crossing and exercise due caution in approaching the much-traveled crossing and was not bound to anticipate that defendant would act without reasonable caution or with culpable' negligence.
Under the testimony and the findings of the jury, can it be said that plaintiff’s lack of ordinary care prevents a recovery? To constitute contributory negligence, plaintiff must have done something or omitted to do something which an ordinarily prudent person would not have done or omitted. When plaintiff came to the crossing he saw a man flagging for a train that shortly moved on. The flagman, it appears, moved on with that train. There was no one there to flag for the backing string' of cars that caused the injury. From the evidence it is inferable that plaintiff took precaution to wait for about four minutes before venturing over the crossing, during which time he was looking and listening for trains or moving cars. In speaking of the action of his wife and himself after the freight train moved on, he testified:
“We waited until this train got into the yards pretty well, then we looked; I did, especially. I looked and listened to be sure there was nothing else crossing those tracks in any way. I then proceeded, following Mrs. Hough across the tracks. I might have been 35 or 40 feet back of her. ... Of course, I don’t know anything about her having looked and listened. I looked before I started across these tracks. I looked in both directions. I did not see a train in either direction. I did not see any light to indicate an approaching train from either direction. There was no whistle or bell sounded. There was no warning whatever given of the approach of any train towards that crossing.”
In view of the evidence, which was apparently believed by the jury, it was sufficient to show that plaintiff exercised ordinary care for his safety. At least it is sufficient to make the matter of his contributory negligence a question of fact for the jury. (Fike v. Railway Co., 90 Kan. 409, 133 Pac. 871; Juznik v. Railway Co., 109 Kan. 359, 199 Pac. 90.)
Enough has been already stated to warrant the finding that the defendant was negligent in backing over the crossing as it did, and that its negligence was the proximate cause of the injury inflicted. In approaching a busy traffic way on a dark night, without lights, and without sounding a whistle or bell, or precaution other than a wigwag, fairly tends to sustain the charge of defendant’s negligence. There was some conflict in the evidence as to what.was do'ne and omitted to be done at the crossing, but the jury has settled the conflict by its findings and verdict.
Some complaint is made of the instructions given and refused by the court. It is said that they are vague and indefinite in some particulars, but a reading of the charge satisfies us that it fairly presented the issues in the case to the jury and is not open to any just criticism.
There is a further contention that the verdict.is excessive. This contention is based on the theory that the plaintiff suffered no physical or bodily injuries, that the injuries complained of are purely mental, are the result of the shock from the collision, and that damages for mental distress alone are not recoverable unless accompanied by physical injuries, citing Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341. That general rule is not applicable to this case. There is testimony that when plaintiff was struck by the train he was stunned and at that time stated that he did not know how badly he was hurt; that afterwards he had pains in the back of his head and that these headaches were very painful and rendered him unfit for business; that he was unable to sleep at night, and further, that for a while his side was strained and pained him for about a week or ten days, and then that sensation passed. There was testimony that previous to the accident he was robust and strong, but that since the collision he has had nervous spells which for the time affect his memory and render him unfit for business. These conditions persisted up to the time of the trial. In view of the testimony it cannot be said that no physical injury resulted from the collision. There may be physical injury where there are no broken bones, lacerations or mutilation of the flesh or surface wounds of any kind. The symptoms described by the witnesses show that internal injuries physical in their nature, resulting from the collision, afford a ground of action. (Townsend v. Seefeld, 102 Kan. 302, 169 Pac. 1157; Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 268 Pac. 103, and cases there cited.)
It follows that the judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This action was brought to collect on a promissory note for $4,500. Defendant prevailed. Plaintiff appeals.
Prior to November, 1926, the Central Motor and Finance Corporation, through its president, Ivor MacFarlane, and Elmer Son, its agent, sold to appellee $2,500 of its preferred stock. At this time the corporation was hopelessly involved and known to be so by both Mr. MacFarlane and Mr. Son. They represented to appellee, for the purpose of inducing him to purchase this stock, that preferred stock in the corporation had been paying and was paying seven per cent dividends, that the company was in good financial condition and was making money. They further represented that the common stock was very valuable and very difficult to procure. At.the end of every quarter after that Elmer Son would call upon appellee and deliver the dividend check in person. On January 11, 1928, when Mr. Son called on appellee with the dividend check a conversation was had with reference to appellee buying some more stock. At that time he paid the company $500 cash and gave it three promissory notes for $1,500 each, maturing at different times, and the company issued $5,000 of stock to him. These three notes did not have written on their face words indicating they were given for shares in a corporation, as required by R. S. 17-1219 et seq. On February 2, 1928, Mr. Son induced appellee to sign one note for $4,500 in place of the three notes for $1,500. This note did not show on its face that it was given for stock in a corporation. At this time there was some talk about the notes being nonnegotiable, and the intention of the finance company to use them for collateral.
Within a few days Mr. Docking, from appellant bank, called appellee up and asked him about the note. Mr. Docking stated that the bank was considering buying the note. There is a sharp dispute here as to this conversation. Appellee states that he told Mr. Docking that the note was given for stock in the finance company and that the company had been paying dividends and was all right. Mr. Docking states that appellee did not say anything about the note being given for stock. The jury found that appellee was asked if the note was good and answered, “Yes, I gave it for stock.” The note dated February 2, 1928, matured in July, 1928. The note sued on in this case was given as a renewal and did not show on its face that it was given for stock in a corporation. Appellant sued on this note. Appellee answered setting'up fraud and misrepresentation in the consideration, that the bank was not a holder in due course and that the note was void because it did not have the words “given for shares” in a corporation stamped or written on the face of it.
Appellant argues that a demurrer to the evidence of defendant should have been sustained because—
“1. The evidence of appellee showed that he initiated the purchase of the stock, and failed to show that the representations claimed to have been relied upon in making the purchase were made for the purpose of inducing him to purchase stock.
“2. The appellee having, upon'request of the seller of stock, given a negotiable note to use for the purpose of obtaining money in place of three notes which could not be so used, and having done everything he could to assist in its disposal, cannot defend on the ground of fraud in the sale of the stock and the illegal form of the note, even though he told the appellant bank it was for stock.
“3. The appellee, having learned of the falsity of the representations or having knowledge of facts sufficient to put him upon inquiry, and thereafter completing the renewal of such a note by paying the interest thereon, has waived the defense of fraud and illegality in form and estopped himself from making such a defense.”
There are also some errors urged by appellant with reference to instructions and submission of special questions which will be noted later.
We have concluded that the case is not so complicated. It may be settled by answering the following questions: Were the original notes given for stock in a corporation? Everyone concedes that this may be answered in the affirmative. Did the original notes have words indicating they were given for stock stamped on them? Parties all agree that this question may be answered in the negative. There was no liability created by the execution of such a note. (R. S. 17-1219; Fidelity State Bank v. Evans, 129 Kan. 199, 282 Pac. 591.) Does the infirmity in the original notes pass to the note given as a renewal, which does not show on its face that it was given for shares in a corporation? This question must be answered in the affirmative. (Yuncker v. English, 121 Kan. 425, 247 Pac. 637; Gregory v. Williams, 106 Kan. 819, 189 Pac. 932, and cases cited.) We must now ask a question of fact. Did appellant know when it purchased the note that it had been given for stock in a corporation? As remarked heretofore, there was a sharp dispute in the evidence as to that. The jury, however, answered in the affirmative. Under the rule announced so many times by this court as not to require citation of authorities here, this finding will not be disturbed. As far as this appeal is concerned that is a settled fact. The next legal question then is, Does the purchaser of a note given for stock, which does not have words indicating such fact stamped on its face, who has notice when he purchases the note that it was given for stock, take the note -subject to the same defenses that it was subject to in the hands of the original payee? This question has been answered in the affirmative by this court in Yuncker v. English, supra. It follows from what has been said that appellee could make the same defenses to the note in question when the bank sued him as he could have made had he been sued by the original payee on one of the original notes.
Appellant makes a strong argument that appellee was estopped from raising the point that the note had been given for stock in a corporation without having those words stamped on its face, once when he told Mr. Docking that the note was all right, and again when he paid the interest on the note sued on in the fall of 1928 after he had heard rumors about the company that should have put him on his guard. The answer to that argument is that no act of the payee of such a note can make it valid when it does not have these words on it. It is simply a void note.
In this connection it is argued that the absence of words showing it was given for shares in a corporation did not render the note void for the reason that the consideration for the note is not bad in itself and that the statute does not so disclose. The same argument was made to this court in Pinney v. Bank, 68 Kan. 223, 75 Pac. 119. In answer to that argument it was said:
“The taking of the notes as alleged was a crime in itself, and it would hardly do to allow the party committing the offense to maintain an action on the obligations so criminally taken. No rights can be acquired by persons who so violate a penal statute, nor by those who know that the act on which they ground their claim was done in violation of law.” (p. 231.)
It is not necessary to discuss what the result would have been if the only defense in this case had been the fraud and misrepresenta tion in the consideration. We have seen fit to put the case altogether on the failure to have the required words stamped on the note.
Appellant urges certain instructions that were requested and not given and certain special questions that were submitted by appellant to be asked the jury and which the court refused. These instructions in a large measure had to do with the fraud feature of this case. Since we have seen fit to put the decision upon the ground that the form of the note was fatal to its validity these will not require attention.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Hal Mendenhall was found guilty in the first degree of the murder of his wife, Anna Ritchey Mendenhall. He has appealed and contends that the court erred (1) in overruling defendant’s motion to be discharged at the close of the state’s evidence in chief; (2) in the admission of evidence; (3) in refusing to give instructions requested, and in instructions given; and (4) in refusing to grant a new trial, (a) because of misconduct of the prosecuting attorney, especially in his closing argument, and (b) because of misconduct and prejudice of the jury. And generally it is argued that defendant did not have a fair trial. We shall discuss these questions in the order stated.
Defendant does not contend that a motion for an instructed verdict in his favor, if made at the close of all the evidence, should have been sustained — indeed, no such motion was made at the time — but does contend that at the close of the state’s evidence in chief the motion for his discharge, which was then made, should have been sustained for the reason that the evidence was insufficient to sustain any charge contained in the information. The state’s evidencé in chief may be summarized as follows:
Defendant and Thelma Rouzer, of Kansas City, Mo., were married in Clay county, Missouri, March 22, 1928. She obtained a divorce from him, in the circuit court of Jackson county, Missouri, September 24, 1929. Before the divorce was granted, and on January 7, 1929, defendant and Anna Ritchey were married at Leavenworth, Kan. At the time of this marriage, and for some time prior thereto, Anna Ritchey lived at 401 North Seventh street in Kansas City, Kan., with her two children, Uriah, about ten years old, and Raymond, about five. She had obtained a divorce from her former husband and was keeping roomers. Defendant had become acquainted with her a few months before their marriage, and after, their marriage went there to live, and contributed to the support of the family-. While living there they had trouble. On one occasion the older boy came home from school and found them fighting —defendant struck her and she struck him, and they hit back and forth. After about a month and a half they moved to 1711 Cleveland avenue. They had trouble there on one occasion. Defendant was striking her and she backed away and went and lay down. After living there about six weeks she took her furniture and children and moved to Leavenworth. Defendant was no.t at the house at the time and did not know about it. She lived there about two months, then joined defendant and went with him to live on his father’s farm, near Brenner Heights, about six miles from Kansas City, the older boy staying at Leavenworth until school was out, when he joined them. They lived there until late in July, when they moved into Kansas City and rented the property at 643 Freeman avenue. It seems she rented this property and paid the rent to October 1, taking the receipt in her former name, Anna Ritchey. But defendant lived there with the family for awhile. Perhaps early in September she told him to take his clothes and go away. He did so, but returned a few days later and had his clothes brought back. About the middle of September they had an argument and she put his clothes out and told him to go, and he went, and did not return to stay. Defendant was well acquainted with a Mr. Bell, a law student and a deputy clerk of the district court. On October 1, or a day or two before that, he met Bell and asked him to answer a couple of legal questions, if he could. Mr. Bell said he would do the best he could, and defendant asked him, “What is the penalty for bigamy?” Also, “What is the penalty for adultery?” Mr. Bell gave answers to both questions, but told defendant he was not sure the penalties named by him were correct. On the morning of October 1 defendant went to a garage, where he was acquainted with the workmen, and asked the porter to take his gun to shoot a dog which had bit his little boy. The porter told defendant he did not have a gun. Defendant then asked Homer Lee, a painter employed at the garage, if he had a gun. Lee said he did, but it was at the house. After some talk defendant asked Lee for the gun. Lee said he never did loan a gun to anybody, but in a case of this kind it would be all right. Defendant said that he would want it only an hour or thirty minutes and would bring it back, and said, “I will go down there and if I don’t see this dog I will come right back.” Lee said, “If you don’t keep it any longer than that I will let you have it.” Defendant wanted to go to Lee’s house to get it. Lee said, “No, my wife won’t let you have it.” Defendant then asked Lee to bring it when he went to lunch, and Lee said he would. Lee returned from lunch about fifteen minutes of one o’clock and let defendant have the gun. It was a Colt’s revolver, “a 38 on a 45 frame,” and was fully loaded with six loaded shells. This is the gun with which Anna Ritchey Mendenhall was shot and killed— about an hour after it was loaned to defendant. About 1:30 o’clock that afternoon, October 1, 1929, Miss Horstman, who looked after renting the property (owned by her mother) at 643 Freeman avenue, and who had rented it late in July to Anna Ritchey (Mendenhall), went there to collect the rent for October. She knocked at the door. After some delay Mrs. Mendenhall came to the door and asked her to come in. She went in. Defendant was there, sitting in a chair, with his hat and coat on. The gun which he had borrowed from Lee was in his inside coat pocket, but was noticeable to one who observed him. He got up and said, “Well, I will go out of the room until you are done,” and stepped into another room. Mrs. Mendenhall said to Miss Horstman, “You want your rent, don’t you?” And, on being answered in the affirmative, went to the buffet drawer and got $30, which she handed to Miss Horstman, and asked if she wanted a piece of paper, and Miss Plorstman replied that she had a receipt. Mrs. Mendenhall started into the other room, then turned and walked outdoors onto the porch. Defendant then went out on the porch. Miss Horstman went out on the porch, and at first did not see them, but looked around the corner of the house and saw them standing there talking. Miss Horstman asked to whom the receipt should be made, and Mrs. Mendenhall said, “To Anna Ritchey.” All three sat on the porch and Miss Horstman wrote out the receipt. Then Mrs. Mendenhall said: “Miss Horstman, I hate to treat you like this, but I'have to. . . . This is my husband,' and I have to leave him.” Defendant said: “She wants to send 'me to the penitentiary.” Mrs. Mendenhall s.aid: “He is a bigamist.” Defendant then started to tell Miss Horstman about some misconduct he had seen the evening before between his wife and a roomer at her house by the name of O’Dowd. Miss Horstman told him. she did not care to hear about their difficulties, that she couldn’t settle them, and suggested if he had work to do he had better go do it. Mrs. Mendenhall said he was not working, that he had no job. Miss Horstman again suggested if they had disputes to settle them peaceably. Mrs. Mendenhall said to Miss Horstman: “I wish you wouldn’t leave,” but she said she couldn’t stay there; and defendant said, “She is an innocent party; she doesn’t know anything about it.” Mrs. Mendenhall said:- “He has'a gun, he is going to shoot me.” Defendant made some remark,-and Mrs. Mendenhall said: “.Well, you will read about it in the" papers in the morning.” Defendant said: “She won’t read anything but a divorce.” She then asked: “What have you got that gun on you for?” He said: “Anna, I didn’t mean to get you; I meant to get the other fellow.” (Doubtless referring to O’Dowd.) Defendant asked her to go in the house a minute, that he wanted to speak to her. She replied that she did not want to talk with him, and suggested that he see her lawyer. After advising the parties to settle their difficulties peaceably, Miss Horstman went away. She had been there perhaps ten minutes. Between 1:30 and 2 o’clock that afternoon (the exact time was not shown) defendant telephoned the police department of Kansas City. The exact wording of that message, as given by defendant, was not shown by the state in chief, but the- officers to whom it was communicated understood he called and said he had shot his wife. As a result of this call an ambulance, two motorcycle policemen and two officers in an automobile were' rushed to the residence, .643 Freeman avenue. When they reached there the defendant was in the-street, having gone across the street to call a doctor who lived there. One of the officers called to him and asked him what was the matter, or why he did it, and he said:, “Well, I had some family trouble,” or “just a family quarrel.” They started to take him into the house, and he said, “I don’t want to go in. Take me to the station.” About that time the officers arrived in the automobile, and he was taken to it. He was asked where the gun was and he said it was in the house. One of the officers went in the house, found the gun, brought it out and showed it to defendant, who said: “Yes, that is the gun.” He got in'the automobile with one of the officers and was taken to the police station. On the way the officers said to him: “What is the matter, Hal?” And he said: ‘‘Well, I have shot my wife.” The officer asked if it were very bad, and he answered: “Yes, I guess she is hurt pretty bad.” Later on the way he said: “We have been having trouble and I looked under the curtain last night at the back of the house and I saw too much.” The other officers and the doctor went in the house. They found Mrs. Mendenhall lying on the floor, in the doorway between two rooms. She was breathing but unconscious — -she had a hole in her breast. There was quite a bit of blood on the floor. She was placed on a stretcher and carried to the ambulance. Her heart ceased beating while this was being done. The coroner, who later examined her, found that the bullet had entered her breast between the third and fourth ribs, an inch and a half or two inches to the right of the breast bone, had passed through her body and left it at about the eighth rib, lower, from two to four inches, than the point of entrance. She had died from internal hemorrhage caused by a gunshot wound. In the room was an overstuffed chair. There was a bullet hole through the back of that chair, the course of which was downward from front to back, and back of the chair there was a hole in the wall. It was in line with the holes in the back of the chair.
The above is a summary of the state’s evidence in chief. The trial court, in denying defendant’s motion to be discharged, correctly held the evidence sufficient to go to the jury on the charge of first-degree murder, or at least on some of the offenses embodied in the charge of first-degree murder on which defendant was being tried. It should be remembered that in his statement to the officers he made no suggestion that the shooting was accidental, justifiable, or excusable, or that it was otherwise than intentional on his part. Before discussing other questions argued by defendant a further statement of the evidence is deemed proper. The principal defense was that the shooting was accidental, that it occurred during a struggle for possession of the gun and while Mrs. Mendenhall was trying to take it away from defendant and he was holding onto it, and that it was unintentional on his part. But defendant’s evidence took a somewhat wider range than that, and was to the effect she was an immoral woman, that she used intoxicating liquor, and frequently used profane and obscene language; that she was hot-tempered and would fight with little or no provocation; that she fought with her first husband, the obvious inference being that he could not live with her on that account, and that on numerous' occasions, which defendant detailed in his testimony, she fought him, striking him and tearing his shirt or his pants, and that on several occasions she had threatened to kill him; that she had a little black gun, which she kept in a dresser or her handbag, and that on several different occasions she had drawn that gun on him and threatened to kill him, but each time he took the gun from her without serious difficulty. As to a few of his wife’s fits of anger, which he testified about, he was corroborated by other witnesses whom he called. No other witness, however, saw or knew of the little black gun. And no other witness, except a Mrs. Lozier (whose testimony was badly shaken on cross-examination and who refused to appear for further cross-examination, although a subpoena for that purpose was served upon her) testified to her immorality, or her use of intoxicating liquor, and there was an abundance of evidence on rebuttal, from many witnesses who had known her, of her good character and her even-tempered disposition. Broadly speaking, defendant’s character was not put in issue. His father was an old resident of the county, had been sheriff of the county, mayor of the city, and had held other positions of honor and trust, and was a man of high standing, with many friends. Defendant, however, appears to have been quite different. He testified that he had been married five times, first about 1912, and freely admitted, “I cannot say positively I was divorced from any of those women.” He had served a term in jail at Lawrence for the possession of gin. He appears not to have accumulated any property, and to have been employed a part of the time only. The shooting occurred on Tuesday, October 1, 1929. He testified that he was not home the Sunday evening before the tragedy, and explained his whereabouts; that on Monday he ate at home at noon, and no one was there but himself, his wife, and the little O’Dowd boy; that on Monday night he walked by the house and saw his wife and a man, wljom he afterwards learned was O’Dowd, sitting on the porch in a position he thought improper; that later in the evening he went around the house and looked in at a window where he could hear their talk and observe their conduct; that he heard them talk of people in the neighborhood where they had lived, and of what they had been doing in the years since they had known each other, including immorality indulged in by each of them; that he saw him kiss her and be unduly familiar with her in other respects; that he heard the man ask what “would happen if Hal would come in,” and her reply that she guessed both of them could take care of him; that the man finally grabbed his wife and reached up and pulled out the lights; that he went to the telephone and called the chief police officer on duty and asked him to come out there to see something. The officer replied that he was busy and asked defendant to call later; that he did call later, and the officer told him they didn’t send policemen to be witnesses in divorce cases, but if he had clothes, or anything at the house that he wanted to get, an officer would be sent to go with him to see that there was no trouble when he got them. He further testified that on Tuesday morning he telephoned to his wife and told her he wanted to come down to the house to get his clothes, and that she said if he had $30 he could have them, that she needed that much money to pay her rent; that he said he had the money, and wanted to go at once and get his clothes; that she asked him to wait until evening, but he objected to going in the evening, and that she finally asked him to wait until after her little boys had gone back to school after lunch. He admitted borrowing the gun from Mr. Lee at the garage and giving a fictitious reason for wanting it. He testified that he went to the house about ten minutes to one o’clock, and that he took the gun - with him because he was afraid of O’Dowd; that when he got to the house he went to the door and called his wife and told her he wanted his clothes. She asked him if he had the money. He said he did, and opened his pocketbook and gave her $30; that he had an extra $5 bill, which she grabbed, saying she needed it to pay for water and light; that he went in the house, and his wife said she wanted to talk to him, and that both of them sat in the room and were talking when Miss Horstman came. His testimony as to what took place while she was there was substantially the same as hers. He testified that' after Miss Horstman left he again asked his wife for his clothes, and while they were talking about it the groceryman with whom they traded came to get an order for groceries; defendant told him that they didn’t want any groceries. His wife spoke up and said, yes, she wanted some, and would give an order. Defendant then said that he wouldn’t pay for any more groceries, and told the groceryman not take an order. The groceryman asked him what about the bill at the store, and he told the groceryman he would call that evening and pay it, and the groceryman went away. He testified that his wife became angry because he refused to order more groceries, and that she grabbed a butcher knife and started after him with it; that he took it away from her and laid it down, and that soon thereafter she grabbed the knife again and tried to strike him with it, and he again took it from her and put it in a cupboard of the cook stove; that he told her he was going to have his clothes if he had to call the police, and started toward the telephone; that his wife then told him to go and get his clothes. He went to the dresser drawer where his clothes usually were, opened it and found some other man’s clothing there, but his clothes were not there; that he asked his wife whose clothes those were, and she told him they were O’Dowd’s; that he said, “That is a hell of a note,” and started to walk away. There was a chair near the door. Both of them started to walk through the door. He was facing south, she facing east, when she said: “Give me that gun,” which was then in his inside right coat pocket, and jumped at him and grabbed the gun; that he took hold of the butt of the gun with one hand and tried to hold it in his pocket and with the other hand was pushing her toward the chair; that she had hold of the gun with both hands and tugging at it to get it from him, when the gun was discharged, and that he did not intentionally or consciously fire the gun. He testified that the gun immediately fell to the floor. His wife sat in the chair. He told her to sit there and he would call an ambulance; that he called the city police department and said: “Send the ambulance to 643 Freeman,” and was told the ambulance would be sent. That he then turned to give some attention to his wife, who had got up out of the chair and had started to walk and had fallen to the floor; that the little O’Dowd boy came in about that time, and he told the boy to call the lady down from upstairs. The little O’Dowd boy ran outdoors. That he then went to the stairs and called the lady upstairs and told her his wife was shot and to come down and take care of her while he ran across the street for a doctor; that he did go across the street and called the doctor and was not back at the house when the ambulance and officers came. He testified that he told the officers where the gun was, and identified it when it was brought out; told them that he did not want to go in the house and for them to take him to the station. He specifically denied that he told anyone that he had shot his wife. He testified the statement he made on this occasion was that “My wife has been shot,” and that when he was asked how it happened he said it was “over the possession of a gun.”
In rebuttal the state called Silas Barber, the groceryman who had been there to take the order just before the casualty. He testified that he knew defendant and his wife, but transacted no business with them except to sell them a few groceries. He testified that on the morning of October 1, the day of the tragedy, defendant came to him and wanted to borrow a gun to shoot a dog. The witness said he had no gun and to speak to the law. Defendant replied that he had called the law and an officer came out there and looked around and said he didn’t have time to look for a dog, and went back. He further testified that in the afternoon of that day, along close to two o’clock, he went to the Mendenhall house to get an order for groceries. Defendant and his wife were sitting on the porch. Defendant saw him come and said, “No groceries to-day,” that he started to go on past and defendant’s wife said, “Yes, I will make out an order,” and started to get up; that defendant got up with her and his wife told him to stay out there and talk to the man while she went in and made out an order, but that defendant went on in the house with her; that he stayed there and waited a few minutes and he soon heard some one halloo for help twice, and it occurred to him that it was a family quarrel, and he started to go away. When he got fifteen or twenty feet away from the house he heard a gun fired; that is, he heard a noise that was either a gun or a door shut. He also heard the boy crying inside the house, and heard defendant say: “Shut up, nobody’s going to hurt you.” He thought possibly the parties in the house didn’t want him to hear .their quarrel, and had shut the door. He walked on across the street and stopped a few minutes to talk with a neighbor. While they were standing talking the ambulance and officers came to the house.
It was brought out at some time in the trial that after Mrs. Ritchey had obtained a divorce from her husband Ritchey, and a few months before she married defendant, Mr. Ritchey died, leaving an estate, the extent of which was not shown, but she had been appointed guardian for the children, and an allowance of $50 per month, payable out of the estate, had been made to her for their support. It also developed that perhaps a week before the tragedy she had called on one of the leading attorneys at Kansas City and consulted him about getting a divorce from defendant, or having her marriage with him annulled because of the fact that he had another wife living from whom he was not divorced, and also about prosecuting him for bigamy, and the attorney had written defendant a letter on the subject, addressed either to defendant’s father, or in care of his father, with whom defendant sometimes made his home.
It was also shown in rebuttal that defendant had no clothes at the house at the time he went down there on October 1, having taken them away a week or two before, at the urgent request of his wife, and not having returned them. There was quite convincing evidence, also, to the effect that neither the evening before the tragedy, nor at any time, was there any misconduct between defendant’s wife and O’Dowd, who a few days prior to the tragedy had rented a room from Mrs. Mendenhall and had employed her to take care of his little boy, then about five years old, dr less, while he was at work. It was also shown that the gun used had a safety device, which first had to be operated, and then'the trigger pulled, before the gun could be fired.
Turning now to the complaints made by defendant with regard to the admission of evidence. Four of these items relate to evidence offered by the state in rebuttal. Defendant had testified that when he asked the porter at the garage that morning for a gun he also asked him to go down to the house with him to get his clothes. The porter was called in rebuttal and testified that defendant said nothing about getting his clothes, but did talk with him about taking his gun to kill a dog. We see no reason why this was not proper rebuttal testimony. Defendant complains that the groceryman, Silas Barber, was called as a rebuttal witness, and contends that his evidence should have been produced in chief. Counsel for the state admit that the evidence would have been proper in chief, but state they did not know of this witness, or of what his testimony would be until after the state had closed its evidence in chief. A showing of that fact was made to the trial court at the time the witness was called, and the circumstances relating thereto were inquired into at that time. It was proper, under the circumstances, for the court to permit the witness to testify, and at most it was a matter within the sound discretion of the court, and clearly the discretion was not abused. Because defendant’s testimony of the trouble between his wife and her first husband, Mr. Ritchey, and the clear inference which he left from his testimony that because she was so high-tempered and such a fighter Ritchey could not live with her, the prosecution, in rebuttal, offered in evidence a certified copy of her decree of divorce, which briefly recited that the divorce was granted to her because of the extreme cruelty of the defendant. Counsel for defendant objected to the introduction of the decree on the ground that the findings therein were binding upon no one except the parties to that action, that it was not binding upon the defendant in this case. The court ruled that counsel was correct, that the findings in the decree would not be binding on the defendant in this action, and that the same could be considered by the jury only together with other evidence bearing on that question. Since the court agreed with counsel for defendant with respect to the effect of the findings in the decree, there is no question concerning the admission of it, as so limited, for this court to pass upon. The police officer who received defendant’s telephone call made directly after the tragedy was called and testified that he answered the telephone, and that defendant said: “This is Hal Mendenhall ... I have just shot my wife, and I wish you would send somebody down here.” The officer asked the address and was given it, then said to defendant: “All right, you stay there and I will send somebody down there at once.” Defendant contends this evidence should have been offered in chief. Substantially the same thing'had been testified to by other officers, 'hence the question is not very material. In view of defendant’s testimony as to the exact words he used in making "the call it was not improper to call this witness in rebuttal.
The state offered evidence as to its efforts to subpoena and have the testimony of certain material witnesses. The trial court admitted this, with the admonition to the jury that it should not presume anything those witnesses would testify to, but the evidence was received simply as an explanation of- why those witnesses were not called to testify. We see no reasonable objection to that. For example, a family lived upstairs at the time of the tragedy. Defendant testified he called the lady to come down. She was not offered as a witness at the trial. The court permitted the prosecution to show that her husband had been working in town at the time of the tragedy, that he resigned his position about two weeks thereafter and moved away, and of the efforts made to locate him and his wife, and inability to do so. Naturally a jury would wonder why this witness had not been called. The evidence objected to was admitted to show this reason, but not to establish anything that the witness might know. There was testimony of a similar character as to two other witnesses, who might have been material on less important features of the case. There was no error in this respect.
Complaint is made of the refusal to give instructions requested and of instructions given, particularly on the question of self-defense. The summary of the evidence above given discloses there was little in it upon which to base self-defense. But the court took the view that, under some views of the testimony, the doctrine of self-defense, at least in a limited way, might be in the case. Defendant requested an instruction embodying that view of the evidence, and on that question the court instructed substantially as requested by defendant. There is therefore no error in this particular.
Defendant complains of misconduct of counsel for the prosecution, particularly in the language used in the closing argument. We have read the argument in full, also the argument of the leading counsel for defendant. There is nothing seriously wrong with these arguments. It would serve no useful purpose to detail the criticisms made by defendant. The case had taken a week or more to try, the arguments lasted a full day, and counsel on both sides, in their arguments, made a few — not many — excursions beyond the line of strict propriety. It would have been better had they not done so, but it is clear there is nothing in the complaints here made that would justify a reversal on this point.
Defendant argues that there was misconduct of the jury, and particularly of the juror Ralph Daughaday. On his voir dire he had answered satisfactorily the usual questions, that he was not acquainted with the defendant, that he had no bias or prejudice against him, and that he had not formed or expressed an opinion concerning his guilt. On the hearing of the motion for a new trial defendant offered two witnesses — Mrs. Butler and her husband — who had known this juror many years. Mrs. Butler testified that on the day of defendant’s preliminary examination she and her husband met the juror Daughaday in the corridor of the courthouse and talked with him about the fact that defendant’s preliminary examination was being held that day; that she stated she would like to hear the case, and that she thought the defendant guilty, and she testified that Daughaday said he thought the defendant guilty and that was one jury he would like to sit on. Mr. Butler testified as to the conversation, but he was not quite so positive that Daughaday had expressed his own opinion with respect to the guilt of defendant. Daughaday testified that he met the parties that day, and the fact that the case was to be tried that day was talked of, but positively denied that he expressed any opinion as to the guilt or innocence of the defendant, and further testified that he had no opinion at that time on that question, and said that he talked mostly with Mr. Butler, soliciting him for an application for insurance in a company for which he was writing insurance. The trial court deemed this question as the only serious one presented on the motion for a new trial, and inquired into it very carefully, and concluded that Mrs. Butler did most of the talking about the case, and that because Mr. Daughaday did not try to argue the question with her she concluded he agreed with her, when, as a matter of fact, he expressed no opinion as to the guilt or innocence of the defendant, and at that time had no such opinion. There is ample evidence to sustain the finding of the trial court on this point, and we concur in it.
To some extent in the printed briefs, but more forcibly in the oral argument, it is contended on behalf of defendant that he did not have a fair trial, that there was a mob spirit prevailing, that the court room was crowded, that at times there were disturbances, that persons crowded up near the jury box and made remarks adverse to defendant, and that the jury had to pass through a crowded corridor where remarks adverse to defendant were made by persons in the crowd. We have carefully examined the record and find nothing in it to justify a complaint of this character. It appears to have been argued to the court on the motion for a new trial. The court stated that it was true there was a crowd, but bailiffs sufficient in number were provided to look after the crowd, see that the passageway near the jury box was kept clear, and that there was no demonstration. The transcript of the record discloses only a few instances when there was any demonstration, and those occurred when there was a colloquy between counsel, or with counsel and a witness. They were promptly suppressed by the court and the audience rebuked. There is nothing in the record to indicate that any juror heard any remark from anyone in the audience, or that any such remark had a particle of effect on the verdict of the jury. Defendant calls attention to the fact that the verdict of the jury was reached in about thirty minutes. The trial court commented on that in passing on a motion for a new trial. The case had been tried with exceptional thoroughness. A full day had been given to the argumént. Every material point in the evidence had been discussed with the jury. The discussions, for the most part, were exceptionally able and helpful to the jury. No doubt by the time the arguments were concluded the jurors were quite well convinced as to their duty in the premises.
Taken as a whole, the defenses offered were not convincing, and it is clear that much of defendant’s testimony was false. On the other hand, there is an abundance of substantial evidence to sustain a finding of all of the elements of murder in the first degree; indeed, it is not argued that such evidence is lacking. The transcript of the record, all of which we have carefully examined, discloses that defendant had a fair trial.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Defendant was prosecuted on three counts: (1) operating an automobile on the roads of Kiowa county without a license tag showing registration; (2) operating an automobile on a public highway while under the influence of intoxicating liquor; and (3) operating an automobile on a public highway at a greater rate of speed than reasonable and at such speed as to endanger the life and limb of a person using the highway.
Count one was quashed, no verdict was returned on count two, and a verdict of guilty was rendered on the third count of the information.
Judgment was entered on the verdict, a sentence of ninety days in jail wás imposed in conformity with the statute (R. S. Supp. 1930, 8-122), and defendant appeals.
He first contends that the evidence was insufficient to sustain the charge and that the court should have directed a verdict of acquittal. We think not. The evidence of the prosecuting witness, Hade Gupton, was sufficient to support the verdict — since the jury saw fit to give it credence. Gupton testified that he came to highway No. 54 from a side road on the south, driving a Ford car. He turned into highway No. 54 and headed eastward just as it was getting dark. Defendant came from the east on No. 54, driving a Peerless car. It swerved from the north side of the road to the south side, and the left fender of the Peerless struck the right fender of Gupton’s car. This collision occurred about forty-five feet east of the point where Gupton had turned into the highway. The record fails to show that the incident occurred in Kiowa county, but counsel for defendant concedes that the court and jury could take judicial notice without proof that state highway No. 54 runs through Kiowa county from east to west. The county attorney in his opening statement to the jury said the crime was committed on highway No. 54 “some six miles west of town” (Greensburg, the county seat), and apparently defendant and his counsel were content to let that statement stand as a conceded fact, as no point was made at the trial that there was a failure of proof that the venue was properly laid in Kiowa county. (State v. Bell, 121 Kan. 866, 250 Pac. 281.) The state’s evidence was therefore sufficient to take the case to the jury. (Biernacki v. Ratzlaff, 102 Kan. 573, 171 Pac. 672.)
Complaint is made' that the trial court unduly restricted defendant’s counsel in his cross-examination of Gupton, principal witness for the prosecution. Defendant sought to show that the prosecution had only been instituted because defendant had declined to pay the cost of repairs to Gupton’s car made necessary by the collision. We think the court permitted that point to be pursued far enough, since the motive of the prosecuting witness had no practical bearing on the question of defendant’s guilt.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a guest for damages for injuries sustained in an automobile accident occasioned by the fault of his host. A demurrer to the petition was sustained in part and overruled in part, and both parties appeal.
Defendant invited plaintiff to ride in defendant’s automobile from Wellington, Kan., to Alva, Oída. The journey was begun, and defendant drove the car in a careful manner and at a reasonable rate of speed. Relying on continued careful operation of the car, plaintiff permitted himself to fall asleep, and continued to sleep until the accident occurred. After plaintiff fell asleep, defendant, knowing plaintiff was asleep, increased the speed of the automobile. At a place between Wellington and Anthony there is a steep incline. At the foot of the incline is a culvert with an upright concrete guard wall at each end. The tire casing of the left rear wheel of the automobile was worn out, and likely to collapse at any time. Defendant deliberately drove down the incline at a speed of fifty-five miles per hour, the casing blew out, defendant set the brakes of the automobile suddenly and violently, and the automobile swerved back and forth on the road, and finally struck one of the culvert end walls. Plaintiff was seriously injured.
The petition charged gross negligence on the part of defendant in using the defective tire and in operating the automobile before and after the blow-out. Plaintiff alleged he was unable to protect himself at the time of the accident because he was asleep. The district court filed the following memorandum of decision:
“Upon the plaintiff’s allegation of a speed of fifty-five (55) miles per hour, and that the plaintiff, a guest, was asleep at the time, the court is of the opinion that the plaintiff’s allegations of speed and being asleep so that the guest did not and could not notify the driver of his objection to the violation of the state law, amounts to contributory negligence, and constitutes a bar to recovery upon this allegation. The guest was sitting in the front seat, and had he remained awake and exercised the ordinary care which he is required to do, could have and should have seen the situation as to driving at a great rate of speed, and ordinary care would require him to notify the driver to slow up. Upon the allegation as to a puncture or blow-out due to the condition of the tire, the court is of the opinion that under the allegations no duty is placed either upon the driver or upon the guest, and that no negligence is alleged.
“The court is overruling the demurrer upon this allegation of negligence alone:
“ ‘Defendant thereupon negligently and carelessly put on the brakes thereof so suddenly¡ and violently that said automobile was thereby and because thereof made to weave and swerve back and forth, over and across- the said road, and to strike one of the said upright concrete abutments of said culvert with such force . . . and so forth,’
and then alleging the injuries. Upon this matter and for this reason the demurrer will be overruled. It was the duty of the driver to exercise ordinary care toward his guest and show ordinary skill in the operation of his automobile. Likewise, of course, it would have been the duty of the passenger, in case of danger, and having time to do so, to notify the driver of the same. Under this allegation the guest could not, had he been wide awake, have notified the driver in the time apparent from the petition, of his incompetent and improper handling of the car, nor would he have had time to suggest any changes in the operation. It follows, therefore, that whether he was asleep or awake, he could not have done anything as a guest to guard against this negligence, so that the fact that he was asleep would not be contributory negligence barring recovery if the negligence be proven at the trial of the case.”
It is not permissible to segregate the various acts of defendant and treat each one separately, as if it were all that occurred. Defendant did not simply drive at a high rate of speed, fie drove down a steep incline at a high rate of speed. He did this with a defective tire likely to collapse and create a crisis in the management of the car. When the foreseeable crisis did occur he used the brakes in a manner almost certain to increase unmanageability. Each act bore a relation to the others, and the cumulative effect was injury to plaintiff.
What was the duty of the host to his guest?
The rule of this court is that the host shall not expose the guest to risk of harm by act or omission violative of the common standard of conduct, the conduct of a reasonable man. The rule goes back to horse-and-buggy days:
“The law required from all persons, including those who render gratuitous services, reasonable care for the safety of life and person.” (Mayberry v. Sivey, 18 Kan. 291, 293 [1877].)
The rule has been modified by statute soon to take effect, limiting liability of a motor vehicle driver to his guest to consequences of “gross and wanton negligence.” The house of representatives proposed a bill using the correct descriptives of the kind of conduct intended to be described, “intentional or reckless,” but the senate amended the bill by going back to the archaic expression, “gross and wanton negligence.”
Defendant did not warrant that he was an expert automobile driver, but his invitation to plaintiff to intrust himself to defendant’s protection carried with it assurances of reasonable qualification to operate the car with a reasonable degree of safety under ordinary road conditions between Wellington and Alva. Defendant did not warrant that his automobile was more than reasonably safe for the contemplated trip, but with the tire in the condition described in the petition defendant should have known the condition, and he was under a duty to plaintiff to operate the automobile in a manner which took into consideration danger arising from collapse of the tire. If defendant’s experience or information should have suggested to him that a car driven at high speed will skid when the brakes are suddenly and violently applied, he was bound to act accordingly. If he did not have sufficient knowledge and skill to arrest speed by means which would not increase risk of accident, and acted from impulse, he would not, ordinarily, be negligent in setting the brakes in an emergency; but in this instance defendant created the emergency, and is not excusable because he did not know what to do or did the wrong thing.
Plaintiff was required to exercise reasonable care for his own safety. He was not obliged to inspect the tires, or brakes, or other equipment of the automobile. He was not obliged to assume that defendant would take advantage of his somnolence to put him in great peril.
This court cannot state a hard-and-fast rule by which it may be determined whether a sleeping guest is negligent, or not negligent. If the guest knows the character of the automobile driver, knows that the driver’s experience and skill qualify him to deal with road and traffic conditions likely to be encountered on a particular journey, and has no reason to anticipate that unusual or extraordinary situations will arise, it may be clear the guest would not be at fault if he took a nap. On the other hand, the circumstances might be such that it would be clear the guest ought to be awake and alert. Generally, the question will be one for the jury, and it would not be profitable to discuss a few of the infinite variety of fact situations which automobile driving. may create. In this instance there is ground for a finding of recklessness on the part of the driver, and in that event the contributory negligence of plaintiff is not of consequence.
Plaintiff invokes a form of the last-clear-chance doctrine — when the car went plunging down the incline, and the tire blew out, he was helpless because he was asleep. The question at the trial will be whether he ought to have suffered himself to be in effect a piece of freight in the automobile when it hurtled down the hill.
The judgment of the district court is reversed generally, and the cause is remanded with directions to overrule the demurrer to the petition.
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The opinion of the court was delivered by
Rosen, J.:
Ricky McGee appeals his conviction for first-degree premeditated murder, claiming that the State violated his right to a statutory speedy trial and the district court should have appointed him new trial counsel.
Due to the nature of this appeal, only the following summarized facts are pertinent. Ricky McGee shot Thomas Dorsey to death on November 8,2002. The district court issued a warrant for McGee’s arrest the next day. Officers arrested McGee on November 10, 2002. McGee confessed to shooting Dorsey shortly after his arrest. Following a prehminaiy hearing on January 16, 2003, the district court bound McGee over for trial and arraigned him.
On March 3, 2003, McGee filed a motion for a competency evaluation, a notice of his intent to use mental disease or defect as a defense, and a request for a mental evaluation. After a hearing on March 7, 2003, the district court granted McGee’s motion and ordered that McGee to be evaluated at Lamed State Security Hospital (Lamed).
On March 7, 2003, McGee filed a pro se motion seeking the appointment of new trial counsel, claiming that his counsel did not visit him and had not prepared a defense. The district court heard McGee’s motion on the same day, after the hearing on McGee’s motion for a mental evaluation, and denied the motion.
McGee was admitted to Lamed on March 31,2003, for his mental evaluation and returned to the Wyandotte County jail on July 2, 2003. A psychiatrist at Lamed concluded that McGee was competent to stand trial and did not lack the mental state required to commit murder. The psychiatrist’s report was received by the State on June 20, 2003. The report was filed with the district court on July 24, 2003. The district court found McGee competent to stand trial on August 8, 2003.
On August 25, 2003, McGee’s trial counsel filed a motion to dismiss based on a violation of McGee’s statutory right to a speedy trial. Following a hearing, the district court denied the motion on August 29, 2003.
McGee waived his right to a jury trial and agreed to a bench trial based on McGee’s taped confession and stipulated facts, including statements from nine witnesses at the scene of the shooting who personally knew McGee and identified him as the shooter. McGee’s trial began on September 9, 2003. The district court convicted McGee of first-degree premeditated murder and sentenced him to fife in prison. McGee appeals his conviction directly to this court pursuant to K.S.A. 22-3601(b)(1).
STATUTORY RIGHT TO SPEEDY TRIAL
McGee claims that his conviction must be reversed and this action dismissed because the State failed to bring him to trial within 90 days as required by K.S.A. 22-3402. The resolution of a statutory speedy trial issue is a question of law subject to de novo review. State v. Jackson, 280 Kan. 16, 23-24, 118 P.3d 1238 (2005). K.S.A. 22-3402 provides, in pertinent part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of die application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
(b) A proceeding to determine die defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section.”
McGee was arraigned on Januaiy 16, 2003, and his bench trial began on September 9, 2003. The time between McGee’s arraignment and trial is 236 days. McGee acknowledges that 93 of these days must be charged to him because of his motion for a competency determination but argues that 143 of these days must be attributed to the State based on the time between his arraignment and the date he filed his motion for a competency evaluation, the length of his commitment to Lamed in excess of 60 days, the date the State received the competency report from Lamed, and the time between the hearing on his motion to dismiss and the beginning of his trial.
McGee’s arguments focus solely on his motion for a competency evaluation while ignoring his notice to rely on mental disease or defect as a defense and his motion for a mental evaluation in that regard. However, when the district court granted McGee’s motion for a competency evaluation, it also granted his motion for an evaluation of “his mental state at the time of the alleged offense, pursuant to K.S.A. 22-3219.”
K.S.A. 22-3219(2) provides:
“A defendant who files a notice of intention to assert the defense that the defendant, as a result of mental disease or defect lacked the mental state required as an element of the offense charged thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or licensed psychologist by whom such examination shall be made. ... A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.”
When a defendant notifies the court that he or she may use mental disease or defect as a defense, the reasonable delays attributable to the psychiatric evaluation of the defendant by both parties are charged to the defendant for purposes of the speedy trial statute. State v. Crane, 260 Kan. 208, 212, 215-16, 918 P.2d 1256 (1996) (charging the time to obtain two evaluations for the State and one evaluation for the defendant to the defendant for speedy trial purposes); State v. Ji, 251 Kan. 3, 26-28, 832 P.2d 1176 (1992) (attributing 612 days to defendant for mental evaluation); State v. Maas, 242 Kan. 44, 51, 744 P.2d 1222 (1987) (charging defendant with 112 days for psychiatric evaluations). The time charged to the defendant begins with the filing of the defendant’s notice to use mental disease or defect as a defense and ends when the examiners’ reports are filed with the court. See Crane, 260 Kan. at 211, 213-15; Ji, 251 Kan. at 28 (using the date the report was filed with the court even though it was more than a year after the report was forwarded to defense counsel); Maas, 242 Kan. at 45-46, 51.
In this case, McGee filed his notice to use mental disease or defect as a defense and his request for a mental evaluation on March 3, 2003. The mental evaluation from Lamed was filed on July 24, 2003. The time charged to McGee from March 3, 2003, to July 24, 2003, is 143 days.
McGee acknowledges that the time from the date of filing his motion to dismiss to the date of the court’s ruling on his motion is attributable to him. McGee filed his motion to dismiss on August 25, 2003. The district court held a hearing and denied McGee’s motion on August 29, 2003. Accordingly, another 4 days must be attributed to McGee, making McGee responsible for a total of 147 days of the 236-day delay.
The remaining 89 days must be charged to the State (236-147=89). K.S.A. 22-3402(1) requires that the defendant be brought to trial within 90 days. The State did not violate McGee’s statutory right to a speedy trial, and the district court did not err when it denied McGee’s motion to dismiss.
APPOINTMENT OF NEW TRIAL COUNSEL
McGee claims that the district court should have granted his pro se motion for appointment of new trial counsel. McGee filed his motion on March 7, 2003. The district court heard McGee’s pro se motion on March 7, 2003, after tire hearing on his motion for a mental evaluation. McGee argues that prejudice should have been presumed when his defense counsel rebutted the claims in McGee’s pro se motion. According to McGee, his counsel’s statements at the hearing established a conflict of interest. McGee also asserts that the district court failed to properly inquire into the nature of the problems between McGee and his counsel.
A trial court’s refusal to appoint new trial counsel is reviewed using an abuse of discretion standard. Judicial discretion is abused when the district court’s action is arbitrary, fanciful, or unreasonable. The test for abuse of judicial discretion is whether any reasonable person would take the view adopted by the district court. State v. Jasper, 269 Kan. 649, 653, 8 P.3d 708 (2000).
To warrant the appointment of new trial counsel, a defendant must show “justifiable dissatisfaction” with his or her appointed counsel. “Justifiable dissatisfaction” maybe demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney. Jasper, 269 Kan. at 654. McGee has limited his arguments to claiming a conflict of interest.
In his pro se motion, McGee provided the following reasons for seeking the appointment of new trial counsel:
“Thei;p is a great lack of concern for this case by my lawyer. I have been here 4 months and have talked to him only one time. And that one time was at preliminary hearing. I have 90 days until trial (post-preliminaiy hearing) and he still hasn’t made any attempt to come and discuss my case. Half of the 90 days has went by and there has been no communication. I have a murder charge in the First degree and I can’t see us preparing for trial in this amount of time. And this is my life we are talking about. I am totally dissatisfied with his contributions to this case. Also I’m dissatisfied with the communications problem we are having, and the lack of will to do his job in this case. He has lied about coming to see me more than once. And has been a no-show at all in the time that I’ve been in here. We have never discussed my side of the case, and at preliminary hearing he didn’t even have copies of the transcripts or witness statements. He is a very ineffective lawyer. I have sent letters to him to come and see me and have had no response. With him as my lawyer I would be facing him as well as the D.A. in court and I would not endure a fair trial. Needless to say who can prepare for a murder trial in (1) one visit.”
At the hearing on McGee’s motion, his defense counsel stated:
"And Judge, if I could add a little to this. As far as the factual allegations, going there, I see that it says that I haven’t visited Mr. McGee and that’s not true. I in fact was going through my file. I visited him shortly after I was appointed to him. We talked about what he wanted to do with his case. He told me that he was planning on going to trial, and he wanted a preliminary.
"So I set a preliminary and reviewed his file. Let him know that’s what I was doing. I visited him shortly before the preliminary to let him know what was going to happen at the preliminary. Then we had a lengthy preliminary, after which I spoke to him about my ideas about filing this motion for competency. I spoke to his family about that and let them know what I was planning on doing. And I did so.
“But, Judge, here is the position I’m in. Mr. McGee has been incarcerated with a couple of clients, or one client of mine that’s dissatisfied and is taking action against me right now. I think that’s part of it.
"But I feel, Judge, I know I have represented him well. I feel I have.”
McGee claims that he had an “obvious” conflict of interest with his appointed trial counsel because his trial counsel contradicted McGee’s version of the facts. McGee asserts that prejudice should be presumed but cites no authority for that proposition.
To support the argument that his attorney has a conflict of interest, McGee cites State v. Carter, 270 Kan. 426, 432-33, 14 P.3d 1138 (2000). In Carter, defense counsel defended his client against a conviction for first-degree premeditated murder by conceding that the defendant committed felony murder when he killed someone in the course of an aggravated robbery. 270 Kan. at 429. The Carter court held that the defendant was denied the effective assistance of counsel because his attorney premised the defense on the defendant’s guilt even though the defendant pled not guilty and objected to the defense strategy. Carter is not factually on point with this case. McGee’s trial counsel did not concede McGee’s guilt to any charges and did not pursue a defense strategy premised on guilt over McGee’s objection.
The Kansas Rules of Professional Conduct prohibit a conflict of interest, precluding a lawyer from representing a client, where the representation may be materially limited by the lawyer’s own interests. KRPC Rule 1.7(b) (2005 Kan. Ct. R. Annot. 407). McGee’s counsel contradicted McGee’s version of the facts. However, contradicting the facts did not compromise any confidential information, concede McGee’s guilt, or establish that McGee’s counsel had any interest that materially limited his representation of McGee. McGee’s complaints center around his counsel’s alleged failure to visit him or prepare McGee’s defense. McGee’s allegations appear to assume that his attorney was not working on McGee’s case unless he was in McGee’s presence. McGee fails to support this assumption with facts.
In State v. Lopez, 271 Kan. 119, 122-23, 22 P.3d 1040 (2001), the defendant requested the appointment of new counsel, claiming that his trial counsel had not talked to him about preparing his defense. Lopez’ trial counsel contradicted Lopez’ claims, advising the court that he and Lopez disagreed regarding the possible outcome of the case. The district court denied Lopez’ request, stating that he had not heard anything that would suggest “that the attorney/client relationship is so conflictive, so strained that this case should not continue.” 271 Kan. at 124. This court affirmed the trial court’s denial, finding no abuse of discretion. 271 Kan. at 125.
Similarly, the disputed facts in this case indicate a disagreement between McGee and his trial counsel, but that disagreement does not rise to the level of a conflict of interest. McGee bears the burden of establishing that the district court abused its discretion. See State v. Martis, 277 Kan. 267, 280, 83 P.3d 1216 (2004). McGee has failed to point to any facts that demonstrate an actual conflict of interest between himself and his trial counsel. Accordingly, the district court did not abuse its discretion when it concluded that there was no conflict of interest between McGee and his counsel.
Next, McGee argues that the district court abused its discretion because it failed to inquire into the nature of his concerns at the hearing. McGee correctly notes that the district court is required to inquire when it becomes aware of a potential conflict of interest between the defendant and his counsel. See State v. Taylor, 266 Kan. 967, 979, 975 P.2d 1196 (1999). However, there is no conflict of interest indicated by the allegations in McGee’s pro se motion. McGee’s motion indicates that he is dissatisfied with the time and attention he received from his trial counsel. While McGee and his attorney may disagree about the amount of time and attention McGee should receive to adequately prepare McGee’s defense, that disagreement does not rise to the level of a conflict of interest.
In addition, McGee thoroughly described his complaints in his pro se motion. McGee’s hand-written motion included details regarding McGee’s complaints and provided an adequate opportunity for McGee to state the source of his dissatisfaction. McGee has failed to demonstrate any abuse of discretion in denying his motion without giving him the opportunity to verbally air his complaints at the hearing.
We affirm McGee’s conviction for first-degree premeditated murder.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator s office against James Bryan Pattison, of Hutchinson, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against respondent alleges numerous violations of the Kansas Rules of Professional Conduct (KRPC). A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on November 16, 2004. Respondent appeared in person, pro se. The hearing panel granted the Disciplinary Administrator’s motion to dismiss the allegation in Count II of the formal complaint. The panel heard evidence that respondent violated KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence and promptness); KRPC 1.7 (2004 Kan. Ct. R. Annot. 391) (conflict of interest); KRPC 4.2 (2004 Kan. Ct. R. Annot. 462) (communication with person represented by counsel), and KRPC 8.4 (2004 Kan. Ct. R. Annot. 485) (misconduct). The panel found, by clear and convincing evidence:
Count I
“2. On July 24, 2002, the Barton County Attorney’s office filed four Child in Need of Care (CINC) cases regarding T.A.D., T.J.D., M.I.M., and M.C.M. K.D. is the mother of the four children. T.D. is the father of T.A.D. and T.J.D. M.M. is the father of M.I.M. and M.C.M.
“3. The Court appointed the Respondent to serve as Guardian ad Litem for the four children.
“4. The Barton County Attorney’s office filed four CINC cases alleging that M.M. was abusing T.A.D. and T.J.D. by hitting them with a belt, that the emo tional and physical needs of the children were not being met, and that K.D. was unable to protect her children.
“5. On July 26, 2002, the Court held tire temporary custody hearing. At that time, tire Respondent, as tire Guardian ad Litem, and tire parents stipulated that the children were in need of care. The Court placed the children in the custody of SRS and recommended that the children be placed outside the home.
“6. On September 3, 2002, K.D. underwent a parenting and psychological evaluation at die Center for Counseling and Consultation by Gail Sullivan. K.D. submitted to psychological tests. . . . The written report of the evaluation was placed in tire ‘social file’ of tire CINC cases. While tire ‘social file’ is confidential, as Guardian ad Litem tire Respondent had access to tire written report of the evaluation.
“7. Early in the case, Linda J. Knak, Assistant Barton County Attorney, began suspecting drat tire Respondent was involved personally or romantically with K.D. because he advocated K.D.’s position at the hearings held in tire CINC cases, because Ms. Knak observed the Respondent and K.D. together in the hallway before and after hearings held in tíre CINC cases, and because the Respondent made recommendations in tire CINC cases that were inconsistent with what other Guardians ad Litem made in cases involving similar facts.
“8. Throughout tire time when tire CINC cases were pending, and while tire Respondent was acting as the Guardian ad Litem, the Respondent communicated with K.D. regarding the case, without first obtaining tire consent of Don Reif, K.D.’s counsel. At some point, K.D. asked the Respondent to see a copy of the complaint documents. The Respondent provided the documents to K.D.
“9. By tire end of 2002, the Respondent had developed an infatuation with K.D. Despite tire Respondent’s feelings regarding K.D., he failed to withdraw from his representation as Guardian ad Litem.
“10. Prior to a hearing held in the CINC cases in Januaiy, 2003, Ms. Knak approached the Respondent and suggested that he needed to withdraw from the case. The Respondent agreed. During tire hearing, however, tire Respondent did not withdraw from the case. Rather, the Respondent asked Magistrate Judge Marty Clark whether he believed that the Respondent needed to withdraw. At that time, Magistrate Judge Clark was aware that there were ‘rumors drat the Respondent and K.D. were involved personally or romantically.’ The Respondent neither admitted nor denied that he was involved with K.D. at that time. Magistrate Judge Clark told the Respondent that he did not need to withdraw.
“11. During one evening in Februaiy, 2003, the Respondent went to a home of a friend of K.D.’s and assisted K.D. with babysitting seven children, including K.D.’s four children. The Respondent and K.D. watched a movie together. At some point during tire evening, M.M. came to the house. A disagreement arose. The Respondent and K.D. took her four children and left the home. K.D. and tire children spent the night in a motel.
“12. On March 4,2003, Ms. Knak again approached tire Respondent and told him that he needed to withdraw. Ms. Knak told the Respondent that if he did not withdraw that she would file a motion and seek to have him removed. The Respondent smiled and told Ms. Knak that ‘it was time/ That same day, the Respondent approached tire bench after Magistrate Judge Clark completed an unrelated matter and moved the court to allow him to withdraw from his representation as the Guardian ad Litem for the four boys. From what the Respondent told Magistrate Judge Clark, the judge believed that the Respondent had become romantically involved with K.D. Magistrate Judge Clark allowed the Respondent to withdraw.
“13. On March-19, 2003, Ms. Knak filed a complaint with the Disciplinary Administrator’s office. John Gatz, the Chairman of the KBA Ethics and Grievance Committee assigned Brock McPherson to investigate the complaint. During the course of the investigation, Mr. McPherson requested, on several occasions, that the Respondent call his office and schedule a personal interview. The Respondent never called Mr. McPherson’s office to schedule a personal interview.
“14. Since that time, the children have been returned to the home of the mother and the CINC cases have been concluded. K.D. and the four boys reside with tire Respondent in Wichita, Kansas.”
Count III
“15. The District Court of Barton County, Kansas, appointed the Respondent to serve as counsel for the father in a CINC case involving O.W.S. The court scheduled the formal hearing for November 5, 2002. The Respondent was provided with proper notice of the hearing. Without explanation, the Respondent failed to appear at the formal hearing. As a result, the court removed the Respondent [as] counsel for the father.
“16. The District Court of Barton County, Kansas, also appointed the Respondent to serve as the Guardian ad Litem in a CINC case involving H.W. The court scheduled a review hearing for March 4, 2003. The Respondent was provided with proper notice of the hearing. Without explanation, the Respondent failed to appear at the review hearing. The court, then, removed the Respondent as Guardian ad Litem.
“17. The District Court of Ellsworth County, Kansas, appointed the Respondent to represent Rodney G. Barnes in case number 02CR98. The Court scheduled a pretrial conference for April 7, 2003, in Mr. Barnes’ case. The Respondent was provided with notice of the hearing. The Respondent failed to appear at the pretrial conference. During the hearing, Mr. Barnes informed the court that he had had no contact with the Respondent since the arraignment held on December 19, 2002, that the Respondent never informed him that the case was scheduled for a jury trial, and that he had tried unsuccessfully to contact the Respondent.”
The panel made the following conclusions of law:
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.7, KRPC 4.2, and KRPC 8.4, as detailed below.
“2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to the father in In re O.W.S., the child in In re H.W., and Mr. Barnes when he failed to appear in court at scheduled hearings. Because the Respondent failed to act with reasonable diligence and promptness in representing the father in In re O.W.S., the child in In re H.W., and Mr. Barnes, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“3. KRPC 1.7(b) provides:
‘A lawyer shall not represent a client if the representation of that client may be materially limited ... by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation . . . .’
In this case, the Respondent’s own interests limited his ability to represent the children in In re T.A.D., T.J.D., M.I.M., and M.C.M, When the Respondent became personally and romantically involved with K.D., the Respondent developed a clear conflict of interest between his duties to his wards and her personal feelings for K.D. Additionally, the Respondent could not have reasonably believed that his representation of the children would not be adversely affected. Finally, the Respondent did not (and could not have) obtained the consent of his wards. The Hearing Panel concludes that the Respondent violated KRPC 1.7(b).
“4. The Kansas Rules of Professional Conduct prohibit attorneys from communicating with represented parties. See KRPC 4.2. That rule specifically provides, as follows:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.’
The Respondent communicated with K.D. regarding the CINC cases when he knew K.D. was represented by Mr. Reif, without first obtaining Mr. Reifs consent. The Respondent engaged in this behavior throughout the pendency of the CINC cases. As such, the Hearing Panel concludes that the Respondent violated KRPC 4.2.
“5. KRPC 8.4 provides, in pertinent part, as follows:
Tt is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;
(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
The Respondent violated KRPC 8.4(d) and KRPC 8.4(g), as detailed below:
“a. The Respondent engaged in conduct that was ‘prejudicial to the administration of justice,’ when he failed to report that M.M. violated the restraining order by having contact with K.D., T.A.D., and T.J.D. Additionally, the Respondent prejudiced justice when he failed to withdraw after he became ‘infatuated’ with K.D. Accordingly, the Plearing Panel concludes that the Respondent violated KRPC 8.4(d).
“b. Becoming personally and romantically involved with K.D.,’while serving [as] the Guardian ad Litem for her children in the CINC cases, adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).”
The panel then recommended as follows:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to Iris clients to provide diligent communication. The Respondent also violated his duty to his clients to refrain from engaging in conflicts of interest. Finally, the Respondent violated his duty to the legal system to refrain from communicating with individuals in the legal system.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to the legal system and to the children involved in the CINC cases.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on one occasion. On March 8, 2000, the Fourth District, Section I Subcommittee of the Virginia State Bar publicly reprimanded the Respondent-for having violated DR 1-102(A)(4) and DR 7-102(A)(3), and DR 7-102(A)(7).
“Selfish Motive. The Respondent’s misconduct was motivated by a selfish interest — engaging in a personal or romantic relationship with K.D.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when he repeatedly failed to appear at scheduled court hearings. The Respondent also engaged in a pattern of misconduct when he continually and consistently, over a period of several months, engaged in conduct that was in conflict with the interests of his clients. Finally, the Respondent engaged in a pattern of misconduct when he repeatedly communicated with a represented party without the consent of adverse counsel.
“Vulnerability of Victim. The Respondent’s four wards were vulnerable to his misconduct. Additionally, as a young mother with four children, K.D. was vulnerable to the Respondent’s misconduct. The Respondent took advantage of the vulnerability of K.D. and her four young children.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Personal or Emotional Problems. Shortly before engaging in the misconduct, the Respondent went through a difficult divorce after having an affair with a student he taught at the junior college. This was a troublesome time for the Respondent.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse for failing to appear at scheduled court hearings.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knows of a client of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potentially injury to a client. Standard 4.32.
‘Suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when tire lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding.’ Standard 6.32.
“Eased upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law in the state of Kansas for a period of one year. The Hearing Panel further recommends that the Respondent be required to undergo a hearing, pursuant to Kan. Sup. Ct. R. 219 [2004 Kan. Ct. R. Annot. 312], prior to being allowed to resume the practice of law.”
The court, having considered the record herein and the reports of the hearing panel, concurs in the findings, conclusions, and, in part, the recommendation of the panel. These findings of fact establish by clear and convincing evidence that the respondent violated KRPC 1.3, 1.7, 4.2, and 8.4, and support the panel’s conclusions.
It Is Therefore Ordered that James Bryan Pattison be suspended from the practice of law in the state of Kansas for a period of 1 year, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2004 Kan. Ct. R. Annot. 237).
It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Allegrucci, J.:
Jimmie R. Bryant pled guilty in February 2002 to one count of attempted manufacture of methamphetamine, a drug severity level 1 offense. He was sentenced to 81 months’ imprisonment. There was no direct appeal. In May 2003 Bryant filed a K.S.A. 60-1507 motion seeking to have his sentence vacated and the case remanded for resentencing pursuant to State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). The district court denied the motion. The Court of Appeals affirmed. This court granted defendant’s petition for review to consider the single question of whether a defendant may assert the rule from State v. McAdam, 277 Kan. 136, Syl. ¶ 3, 83 P.3d 161 (2004), as to identical offenses, in a collateral challenge claiming that the defendant could only be sentenced to the lesser penalty.
Bryant pled guilty to one count of attempt to manufacture methamphetamine in violation of K.S.A. 65-4159(b)(1), a severity level 1 drug felony. Pursuant to the plea agreement, the State dismissed four remaining charges: (1) possession of pseudoephedrine/ephedrine in violation of K.S.A. 65-7006, a severity level 1 drug felony; (2) possession of methamphetamine in violation of K.S.A. 65-4160(a), a severity level 4 drug felony; (3) possession of drug paraphernalia in violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony; and (4) criminal possession of a firearm in violation of K.S.A. 21-4204(a)(3), a severity level 8 nonperson felony. Following the plea agreement, the State and defendant jointly then sought a downward departure in the sentence from the presumptive standard of 162 months’ to 81 months’ imprisonment. After acknowledging the plea agreement, the district court judge sentenced defendant to 81 months’ imprisonment.
Biyant’s 60-1507 motion seeks to have his sentence vacated and the matter remanded for resentencing pursuant to Frazier, 30 Kan. App. 2d 398. The trial court denied relief. Bryant appealed to the Court of Appeals where he argued that McAdam controlled and sought to have the trial court’s decision reversed and the matter remanded for resentencing to a severity level 3 drug felony. The Court of Appeals affirmed. Bryant v. State, No. 91,113, unpublished opinion filed July 23, 2004.
In Frazier, a direct appeal, the Court of Appeals had concluded that possession of ephedrine or pseudoephedrine, K.S.A. 65-7006(a), and possession of drug paraphernalia, K.S.A. 65-4152(a)(3), were identical offenses prohibiting possession of ephedrine or pseudoephedrine for use in the manufacture of a controlled substance. 30 Kan. App. 2d at 404-05. The Court of Appeals vacated Frazier’s severity level 1 felony sentence and remanded to the district court with directions to impose a sentence for a drug severity level 4 felony.
In McAdam, also a direct appeal, this court had held that the elements of conspiracy to manufacture methamphetamine under K.S.A. 65-4159(a) are identical in the context of methamphetamine to the elements of 65-4161(a), the compounding of illegal substances, and therefore the defendant could only be sentenced to the less severe penalty of the two statutes. The court then vacated McAdam’s severity level 1 drug felony sentence and remanded the matter to the district court with directions to impose a sentence for a severity level 3 drug felony as provided for with a violation of 65-4161(a). 277 Kan. at 146-47.
In the present case, the Court of Appeals ordered the parties to brief the question whether the reasoning in Wilson v. State, 31 Kan. App. 2d 728, 71 P.3d 1180, rev. denied 276 Kan. 974 (2003), applied. In Wilson, the Court of Appeals held that Frazier “will not be retroactively applied in a K.S.A. 60-1507 collateral attack of an unappealed conviction after a favorable plea agreement.” 31 Kan. App. 2d 728, Syl.
The Court of Appeals determined that the facts of the present case were analogous to the facts in Wilson, “where the defendant sought to have his sentence reduced from a level 1 drug felony for possession of ephedrine/pseudoephedrine to a level 4 drug felony for possession of drug paraphernalia citing State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002).” Slip op. at 4. Continuing its comparison of the present case to Wilson, the Court of Appeals stated:
“Subsequently, in Wilson, the defendant, who had entered a no contest plea to possession of ephedrine/pseudoephedrine under K.S.A. 65-7006(a), filed a K.S.A. 60-1507 [a collateral attack] motion arguing his sentence was illegal under Frazier. This court disagreed and held that where a defendant enters a no contest plea to take advantage of a favorable plea agreement and does not file a direct appeal, he or she cannot collaterally challenge the sentence imposed. 31 Kan. App. 2d at 733-34.” Slip op. at 5.
The Court of Appeals then noted:
“Here, the facts are substantially the same procedurally as those in Wilson. First, the defendant entered into a plea agreement which resulted in the State dismissing several other charges. In addition, the State joined the defendant in his motion for a downward durational departure. The sentencing court, on September 2, 2002, accepted the plea and imposed the stipulated sentence of 81 months. No direct appeal was taken. Instead, almost nine months later, the defendant filed a K.S.A. 60-1507 motion challenging his sentence.” Slip op. at 5-6.
The Court of Appeals then stated:
“It is settled law that state courts are under no constitutional duty to apply their criminal decisions retroactively. See Wilson, 31 Kan. App. 2d at 733. Here, the defendant’s sentence was final before McAdam was decided on January 30,2004. There is no claim that a new constitutional rule of criminal procedure is at issue, and no one is arguing that the McAdam decision stands for the proposition that the defendant could not be convicted of the crime as set out in the plea agreement. We understand there is no right to a lesser sentence when two crimes have the same elements under the United States Constitution. United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). . . .
“The defendant’s only right to relief would arise from our Supreme Court’s decisions in State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987). However, we understand that both Nunn and Clements were direct appeals and not collateral attacks as is the case here. Neither of those decisions control the question here.
“As in Wilson, we decline to hold that McAdam applies retroactively to those cases on collateral review because to do so would give the defendant the double benefit of a favorable plea agreement, with a significant downward durational departure and then the benefit of an issue he failed to raise at the trial court or on direct appeal. Similarly, the defendant cannot argue his sentence should have been for a severity level 4 felony [under Frazier] for the same reason.” Slip op. at 6-7.
In response to the Court of Appeals’ order, Bryant now contends to this court that Wilson should not be applied because its reasoning was erroneously drawn from Easterwood v. State, 273 Kan. 361, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002). In Easterwood, the principal question was whether State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001), should be applied so that Easterwood, who had been sentenced in 1996, could have his guilty pleas set aside in a collateral attack. In Sophophone’s direct appeal, this court held that the killing of his co-felon by a law enforcement officer as the co-felon was fleeing from an aggravated burglary in which both felons had participated did not support Sophophone’s conviction for felony murder. 270 Kan. at 713. “The facts in Sophophone were almost identical to Easterwood’s situation” with “the deaths in both cases result[ing] from the lawful act of a law enforcement officer.” 273 Kan. at 367-68. In reaching its conclusion that Sophophone should not be applied, the Easterwood court reasoned:
“Felony murder clearly existed when Easterwood pled. A death had occurred during a covered felony. Easterwood was a primary actor in the aggravated robbery and kidnapping, which was necessary to invoke the felony-murder doctrine. He admitted in his plea colloquy that he was guilty. He asked the court to accept the plea agreement. He failed to appeal or challenge the court’s acceptance of his plea. We will not now retroactively decide that his plea is void because of a later favorable ruling on the precise issue he voluntarily declined to challenge.” 273 Kan. at 382-83.
In a supplemental brief, Bryant now contends that Easterwood was an unsuitable source for Wilsons reasoning because Easter-wood was a collateral attack on convictions and Wilson’s collateral attack was on his sentence. Biyant argues that Easterwood had waived his right to collaterally attack his conviction by pleading guilty, but that Biyant could attack his illegal sentence at any time pursuant to K.S.A. 22-3504. He now asserts that neither the State nor a defendant can stipulate to an illegal sentence or waive an illegal sentence. We note that this court, in State v. Barnes, 278 Kan. 121, 124, 92 P.3d 578 (2004), squarely faced the question whether the defendant’s severity level 1 drug felony sentence for manufacture of methamphetamine under K.S.A. 65-4159(a) was an illegal sentence within the meaning of K.S.A. 22-3504(1), applied our decision in McAdam, and concluded that it was not.
In addition, Bryant also argued that Wilson was wrongly decided because it failed to follow a “critical component” of Easterwood. Easterwood had been advised by trial counsel of the range of penalties and, in addition, the potential for an argument that the facts of his case did not subject him to felony murder. In Wilson, the Court of Appeals had observed that the “significant difference” between Easterwood and Wilson “is that there was no discussion by counsel shown of record that Wilson might argue for the Frazier result.” 31 Kan. App. 2d at 734. The Wilson court, however, concluded that the possibility of fighting a Frazier issue was outweighed by defendant’s advantageous plea, stating:
“It is perfectly logical that with K.S.A. 1999 Supp. 65-7006(a) so new and Wilson facing so many counts and charges that even if die argument had been raised the detriments would outweigh die possible benefits of fighting die Frazier issue in the district and appellate courts along with all die existing charges. Based on the lack of a record before us, it is not proper for us to speculate on facts that may or may not have been a part of tlie plea negotiations.
“We decline, under the facts presented to us in this case to rule that Frazier must be applied retroactively. To do so would give Wilson a double benefit, a favorable plea agreement and tiren the benefit of an issue he initially failed to raise on appeal.” 31 Kan. App. 2d at 734.
In his petition for review, Bryant reiterates the argument that there is a distinction between a collateral attack on a conviction and a collateral attack on a sentence. Bryant does not contend that he is guilty of an offense other than the offense for which he entered a plea, or argue that the sentence imposed was not appropriate for the offense; instead, he emphasizes that he did not knowingly waive his right to receive the appropriate sentence.
In support of this position, Bryant cites Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994); LaBona v. State, 255 Kan. 66, 872 P.2d 271 (1994); State v. Heywood, 245 Kan. 615, 783 P.2d 890 (1989); and Barnes. Carmichael collaterally attacked his juiy convictions based on an intervening appellate decision, and the court held that, under such circumstances, Carmichael should be re-sentenced for a more specific offense. 255 Kan. at 11, 19. LaBona, on the same ground as Carmichael, collaterally attacked the convictions he pled guilty to, and the court held that, under these circumstances, LaBona had waived his right to do so. 255 Kan. at 66, 69-70. While Heywood’s direct appeal from a guilty plea was pending, the court remanded Heywood’s case for resentencing in light of an intervening appellate decision. 245 Kan. at 616. Likewise, Barnes’ case was remanded for resentencing in accordance with McAdam because it was pending on direct appeal when McAdam was decided. Barnes, 278 Kan. at 129.
Biyant reasons that Carmichael, Heywood, and Barnes prevailed because they had not waived the right they sought; LaBona, on the other hand, by pleading guilty, waived the right to collaterally attack his convictions. Carmichael, according to Bryant, had not waived his right because he had been convicted by a jury rather than pleading guilty. Bryant argues that Heywood and Barnes had not waived their rights when they had pled guilty because they were attacking the sentences imposed rather than their convictions. Bryant asserts that in Barnes this court “held that a defendant does not waive a McAdam claim by pleading guilty.”
Bryant’s interpretation of Barnes is at odds with the court’s statements. The holding in Barnes, in fact, was “that the decision in McAdam should be applied to Barnes’ case since it was pending on appeal at the time of the decision in McAdam.” (Emphasis added.) 278 Kan. at 129. Heywood was cited in Barnes because the procedural histories of the two cases were the same, i.e., both were pending direct appeals, and the court concluded that, “under Heywood, the appropriate disposition would be to remand for resentencing.” 278 Kan. at 128. Although it did not directly state reasons why, the Barnes court clearly stated that a direct appeal and a collateral proceeding warrant different treatment. Rejecting the State’s request in Barnes that it follow the reasoning from Wilson, the court stated: “Because this case is not a collateral attack, much of the Wilson court’s analysis is inapplicable here. The question presented in this case is not whether the McAdam rule can be asserted in a collateral attack.” 278 Kan. at 127.
Biyant insists, however, that it should not matter whether a direct appeal or collateral attack brings a question to the court. The key is waiver. Biyant categorizes himself with Barnes and Heywood as not having waived the right to receive an appropriate sentence. In fact, we note Biyant did waive a challenge to his sentence by not appealing the sentence, whereas by appealing their sentences, Barnes and Heywood had preserved their challenges.
Bryant cites Reed v. Hannigan, 295 F.3d 1061 (10th Cir. 2002), for the distinction between a collateral attack of a conviction following trial and a guilty plea. Reed pled guilty to indecent liberties with a child based on an incident with his stepdaughter. 295 F.3d at 1062. Later, this court decided State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), which held that the more specific crime of aggravated incest was applicable where the victim and perpetrator were related. The statutory penalty for indecent liberties with a child was greater than that for aggravated incest. Thus, what Reed sought in his collateral challenge was a reduction of his sentence.
Judge Briscoe, writing for the 10th Circuit Court of Appeals, contrasted the effect of Williams in Carmichael and LaBona:
“In Carmichael v. State, 255 Kan. 10, 872 P.2d 240, 247 (1994), the court held that the rule announced in Williams was not jurisdictional, and the proper post-conviction remedy for a defendant challenging a rape conviction, where the defendant was related to the victim, was to vacate the sentence for the crime of rape and remand for resentencing for the crime of aggravated incest. In contrast, in LaBona v. State, 255 Kan. 66, 872 P.2d 271, 273 (1994), the court held that a defendant who voluntarily pled guilty to the crime of indecent liberties with a child waived the right to challenge that conviction by asserting he could only be charged with aggravated incest. Reiterating that its ruling in Williams was not jurisdictional or constitutional in nature, the court held that a defendant who pled guilty acquiesced in his conviction for indecent liberties and would not be re-sentenced under the penalty provisions applicable to aggravated incest. Id. at 272-74.” 295 F.3d at 1063.
The 10th Circuit noted that, based on Williams and Carmichael, Reed sought collateral review of his sentence in the trial court. “The state trial court held, and the Kansas Court of Appeals affirmed, that petitioner had waived any challenge to his sentence when he pled guilty to the crime of indecent liberties with a child.” 295 F.3d at 1063. The 10th Circuit noted that the state court decision
“is not contrary to clearly established federal law as the United States Supreme Court has approved similar holdings on many occasions. See, e.g., United States v. Broce, 488 U.S. 563, 570-74, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (holding habeas petitioners waived double jeopardy challenge by pleading guilty to separate charges, despite later court ruling that such charges would have been impermissible); Tollett v. Henderson, 411 U.S. 258, 265-67, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973) (holding guilty plea waived all challenges to deprivations of constitutional right that antedated plea such as infirmities in the composition of the grand jury).” 295 F.3d at 1063-64.
With regard to Reed’s additional arguments, Judge Rriscoe wrote:
“ ‘[A] voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.’ Broce, 488 U.S. at 574, 109 S. Ct. 757 (quotation omitted). At the time petitioner was charged, it was legally permissible to charge petitioner with indecent liberties rather than aggravated incest, see State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), overruled in relevant part by Williams, 829 P.2d at 897, and thus petitioner’s plea was not an unlawful plea. See Broce, 488 U.S. at 572-73, 109 S. Ct. 757 (noting that absent impermissible state conduct, ‘a voluntary plea of guilty intelligently made in the light of the then apphcable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise,’ and holding that a petitioner need not know of the potential defense to waive it) (quotation omitted). For the same reason, petitioner’s attorney was not ineffective for failing to predict a judicial ruling that would not be announced until 1992, and further, this later judicial ruling did not render petitioner’s prior plea unknowing and involuntary. See Baker v. State, 20 Kan. App. 2d 807, 894 P.2d 221, 223-24 (1995).
“Moreover, the fact that a petitioner who has pled guilty is treated differently than a petitioner who was tried and convicted by a jury does not violate equal protection because the petitioners are not similarly situated. See Stephens v. Thomas, 19 F.3d 498, 501 (10th Cir. 1994) (“If the groups are not similarly situated, there is no equal protection violation.”) (quoting United States v. Woods, 888 F.2d 653, 656 (10th Cir. 1989)). Unlike an accused who elects to go to trial, a defendant who pleads guilty admits violating the statute charged and thereby waives his potential defenses. See Broce, 488 U.S. at 569, 109 S. Ct. 757.” 295 F.3d at 1064.
Although Reed is an instructive review of Kansas law on collateral challenges, it does not favor Biyant’s view that he is a candidate for postconviction relief.
McAdam can be distinguished from Williams because McAdam did not establish a “new rule of law” but rather applied principles enunciated in Nunn and Clements to existing statutes. Barnes, 278 Kan. at 127. Because McAdam merely clarified existing law rather than establishing new law, i.e., the McAdam “rule” was the correct interpretation of Kansas law at the time Bryant’s conviction and sentence became final.
In addition, in Fiore v. White, 531 U.S. 225, 148 L. Ed. 2d 629, 121 S. Ct. 712 (2001), a habeas corpus action, the United States Supreme Court considered whether Fiore’s Pennsylvania jury conviction for operating a hazardous waste facility without a permit was inconsistent with the federal Due Process Clause. Fiore had a permit but had been prosecuted on the theory that he “had deviated so dramatically from the permit’s terms that he nonetheless had violated the statute.” 531 U.S. at 227. After Fiore’s conviction became final, the Pennsylvania Supreme Court in Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d 1109 (1993), considered the statute and concluded that a person who deviated from his or her permit’s terms was not a person without a permit within the meaning of the statute. 531 U.S. at 227. In response to a certified question, the Pennsylvania Supreme Court stated that Scarpone merely clarified existing law and did not announce a new rule of law. 531 U.S. at 228. The United States Supreme Court stated:
“The Pennsylvania Supreme Court’s reply specifies that the interpretation of § 6018.401(a) set out in Scarpone ‘merely clarified’ the statute and was the law of Pennsylvania — as properly interpreted — at the time of Fiore’s conviction. Because Scarpone was not new law, this case presents no issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.
“This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. See Jackson, 443 U.S, at 316; In re Winship, 397 U.S. 358, 364[, 90 S. Ct. 1068, 25 L. Ed. 2d 368] (1970). In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted. Scarpone, supra, at 279, 634 A.2d, at 1112. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, . . . necessarily concedes that it did not prove he failed to possess one.
“The simple, inevitable conclusion is that Fiore’s conviction fails to satisfy the Federal Constitution’s demands.” 531 U.S. at 228-29.
Paraphrasing Fiore in the circumstances of the present case, we would say that McAdam merely clarified the law and was the law of Kansas — as properly interpreted — at the time of Bryant’s conviction and sentencing. Because McAdam was not new law, but merely a clarification of the existing law, this case presents no issue of retroactivity. Rather, when applying Fiore, the question is simply whether Kansas can sentence Bryant inconsistently with its own law without violating the federal Constitution.
Pennsylvania had convicted Fiore of a crime without proving all the elements of it, which the Due Process Clause of the Fourteenth Amendment forbids a State to do. The circumstances are quite different in the present case. Here there is no claim that the State convicted Bryant of a crime without proving all the elements. Instead, Biyant claims that he is entitled to a lesser sentence because the offense he pled guilty to and a second offense having a lesser penalty had identical elements.
Bryant has no right under either the Equal Protection or the Due Process Clause of the Fourteenth Amendment to the lesser sentence when the crime of conviction and another crime have the same elements. In support of our decision, we note that in United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979), Batchelder was convicted of violation of one of two federal statutes that prohibit a convicted felon from receiving a firearm that has traveled in interstate commerce. Batchelder was convicted and sentenced under the statute carrying the greater penalty. The question before the United States Supreme Court was “whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under die more lenient provision when his conduct violates both statutes.” 442 U.S. at 116. The Supreme Court concluded that a criminal defendant has no federal constitutional right to be sentenced under the more lenient provision. 442 U.S. at 125.
Likewise, there are no state constitutional constraints noted in McAdam or the cases on which McAdam is based, State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987), and State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989). The basis for the decisions in Clements and Nunn was that the determination of “which penalty to seek cannot be a matter of prosecutorial whimsy in charging.” 241 Kan. at 83. Clements and Nunn were direct appeals; nothing in those decisions requires application of the rule to cases on collateral review.
Many distinctions are drawn by the courts in determining the justiciability of postconviction challenges. For example, guilty pleas are distinguished from convictions following trial, new law is distinguished from mere clarification, and constitutional requirement is distinguished from a rule otherwise imposed. The distinction urged by Biyant between a collateral challenge on a conviction and one on a sentence, however, is not manifest in the authorities he cites.
Bryant’s final argument is that, if his collateral attack on his sentence is unsuccessful because he pled guilty and did not prosecute a direct appeal, he will seek to perfect a direct appeal out of time. He predicts that his appeal will be allowed pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and State v. Willingham, 266 Kan. 98, 101, 967 P.2d 1079 (1998), because he will be able to show that he was not informed of his right to appeal. Once his appeal is pending, he will be entitled to seek relief he claims is available pursuant to Barnes. The possibility that there is that an alternative means to the end Bryant seeks does not strengthen his principal argument in this appeal.
The Court of Appeals and district court are affirmed.
Locket, J., Retired, assigned.
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The opinion of the court was delivered by
Beier, J.:
This case arises out of a quadruple homicide in Wichita. Defendant Cornelius Oliver appeals his convictions and hard 50 sentences on two counts of first-degree premeditated murder and two counts of first-degree felony murder in the deaths of Jermaine Levy, Quincy Williams, Odessa Ford, and Raeshawnda Wheaton.
Oliver raises five issues: (1) Did the police have probable cause to support his arrest? (2) Did the district court err in hmiting testimony regarding his psychological disorders? (3) Did the district court err in instructing the jury on the lesser included offenses of capital and premeditated murder? (4) Was an instruction on compulsion warranted? and (5) Is the hard 50 sentencing statute unconstitutional?
Facts
Investigation of the murders at the center of this case began when a Wichita police officer was dispatched to a house on a shooting complaint. Inside the house, the officer found four dead bodies. The bodies of Jermaine Levy, Quincy Williams, and Odessa Ford were in the front room. Raeshawnda Wheaton’s body was in a bedroom.
Levy was sitting on the floor, leaning against a couch. Two bullets fired from a .380 semi-automatic handgun were recovered from his body; the points of entry were the lower left side of his head and the lower left side of his neck. One of his pockets was pulled out. Williams was facing a television and sitting on another couch. He had been shot three times, twice with a .38 caliber special revolver and once with the .380 handgun. Williams’ entry wounds were on the top left side of his head, above his left eyebrow, and in the center lower area of his head. A bullet was found underneath Williams that had been fired from the .38 revolver. Ford was lying on her back on the floor. She had been shot in the head with a .38 revolver from 3 feet to 6 feet away. Investigators found no defensive wounds on these three victims.
In the bedroom, there was a bullet hole in the doorway to the closet and in the wall. These bullets had been fired from the .38 revolver. Wheaton was sitting between a wall and a bed. She had a pillow clutched to her face, and there were two bullet holes in the pillow. Wheaton sustained a graze wound on her left hand and a graze wound on her left cheek, which were classified as defensive wounds. Another shot went through her wrist. She had also been shot in the top of her head at close range. These bullets were fired by the .380 handgun.
Various shell casings from the .380 handgun were found at other points in the house. Police also found a live .380 round. The markings on it were consistent with a misfeed.
Jesse Hardyway, a friend ofWilliams, arrived at the house before the police. He testified that a video game was on the television on pause and that Williams had a video controller in his hand. Hardyway also testified that Ford was selling drugs for defendant out of her house. Another person who entered the house testified that he took the adapter to the video game.
In the bedroom, a ceiling tile had been moved. The police recovered a small amount of drugs and money from the ceiling.
Before arresting defendant Oliver, the police knew he and Wheaton shared a violent romantic history. They also knew Oliver was a gang member, and Levy and Williams were affiliated with a rival gang. The police were wary, however, of assuming the crimes were gang-related. Neither Levy nor Williams had been in a defensive position, and each appeared to have been shot from behind. Further, the killing of the two women, while not unheard of, would have been rare in gang crime. The police therefore decided to explore robbery and domestic violence, in addition to the gang theory, as motives for the murders.
There had been no forced entry, and the investigators concluded that the shooter was probably someone familiar to the victims. While at the crime scene, a police officer had received a sheet of paper with defendant’s name written on it from an unidentified person.
Wheaton’s father informed police about Wheaton’s rocky relationship with Oliver and told them people suspected Oliver had committed the crime. He also told them that Oliver often stole Wheaton’s car. Wheaton’s mother reported to police that Oliver had pulled a gun on Wheaton.
The police also learned from Ford’s mother that Wheaton had described a fight with Oliver in which he dropped his gun and she picked it up and shot him with it. The same day, Wheaton had appeared at a hospital with injuries to her face. She was interviewed by a police officer but refused to file a complaint, claiming a stranger had attacked her. Oliver appeared at another hospital with a gunshot wound to his left shoulder. He also was interviewed by a police officer. Oliver first told the officer that he had been shot in a drive-by shooting; he later claimed he had shot himself.
Ford’s mother also told police that Oliver had threatened Wheaton and Ford two days before the murders and that he was crazy. Oliver had said he would “get” the people helping Wheaton.
Police also searched a house associated with defendant and turned up three weapons, including a .380 handgun.
At this point, the police decided to arrest Oliver. One officer testified that, because Oliver had yet to surface and inquire about Wheaton, police feared he might leave town before he could be questioned.
The officers sent to arrest Oliver found him on his brother’s porch. Oliver was wearing pants and a sleeveless tank top, which seemed odd to the officers because it was December and cold outside. The officers observed Oliver from their car until he started to leave the porch; then they arrested him. One of the officers testified that he observed blood on the toes of Oliver’s shoes. Other clothing belonging to Oliver was found in the garage. Blood from both Oliver and Levy was found on that clothing. Other blood stains on the clothing could not be identified.
After his arrest, Oliver was placed in an interview room for 45 minutes. His shoes were taken, and he was shackled to the floor and handcuffed to the table. He was given Miranda warnings and agreed to speak with officers.
Oliver told the officers different versions of the events on the night of the homicide, initially saying he had nothing to do with the murders. When the officers told Oliver that they had spoken with Earl Bell and Demetrius Butler, whose nickname was “DJ,” and that they wanted to clear up some discrepancies, Oliver continued to deny having anything to do with the shootings. Oliver referred to Bell as his “brother” or “stepbrother.”
Oliver eventually said he regretted going over to the house where the bodies had been found. In this second version of his story, Oliver said he had walked up to the house, and Ford had opened the door. “Two dudes” were sitting on the couch, looking at him like “we gonna get you or we know who you is and we gonna get you.” Oliver said he then talked to Wheaton, and she told him one of the men had a “glock.” Oliver realized that the man did not have a “glock” but did have a .380 handgun. The men were playing a video game and calling him names like “crab,” which was disrespectful toward his gang. Oliver said he was also seeing “stuff’ out of tire corner of his eye. He thought one of the men grabbed for his gun; so Oliver shot that man in the head. Ford then ran out of the bedroom, and the other man shot her. Oliver then started shooting again, and he said that he thought he had shot the other man. Oliver said he then ran away, hearing more shots as he was leaving. He claimed that he threw his gun, a .38 caliber revolver, into some bushes.
A detective responded to this story by presenting Oliver with contradictory physical evidence. Oliver then admitted that he had shot Ford once. He also said that he and Wheaton had wrestled and that she had been shot accidentally.
Eventually Oliver told a third version of his story. In this version, he admitted Bell and “DJ” had accompanied him to the house. He again stated that Ford let them in. Again, he claimed Wheaton told him that one of the men at the house had a gun. Oliver admitted that the two men were still playing the video game when he shot both with a .380 handgun in the back of the head. One was still shaking, so Oliver pushed him over. Oliver checked this man’s pockets but decided not to take the lighter he felt there. Oliver claimed that his gun jammed, and Bell gave him a .38 revolver. Oliver then entered the bedroom where the frightened women were huddled. Ford started to run; so he shot her. He then fired a warning shot at Wheaton. She cowered under a pillow, and he fired again. Oliver then retrieved his .380 handgun from Bell and shot Wheaton.
Oliver was charged with one count of first-degree premeditated murder pursuant to K.S.A. 21-3401(a) for the killing of Levy and with three counts of capital murder pursuant to K.S.A. 21-3439(a)(6) for the killings of Williams, Ford, and Wheaton.
Oliver testified in his trial, and, again, his account of events changed. This time, Oliver said Bell was the shooter. He asserted that Bell was upset and wanted to go over to Wheaton’s house. Butler was carrying Oliver’s .380 handgun. When the three arrived, Ford let them into the house. Oliver and Wheaton went into the bedroom to talk. Oliver thought he heard gunshots but did not think anything of it. He then saw Ford stumble. When he returned to the living room, Bell was holding a gun and told him to check Levy. Oliver complied. Bell then entered the bedroom and shot Wheaton. Oliver said he was too frightened to run. He also testified that he believed Bell had set him up, because it was Bell who had told him to wait on his brother’s porch the day that Oliver was arrested. Oliver testified he did not inform police that Bell had committed the crimes because he “just [didn’t] tell on people.”
After trial had begun, the defense sought to introduce expert testimony from psychologist Todd Robert Poch on his diagnoses of Oliver’s post-traumatic stress disorder and dependent personality disorder. Defense counsel asserted that the testimony addressed the “psychological environment” for Oliver’s confession under Crane v. Kentucky, 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986), and would assist the jury in understanding why Oliver would claim responsibility for murders he did not commit. The State sought to exclude the testimony.
Poch’s written report, which had been shared with the prosecution, stated that individuals with dependent personality disorder “tend to be passive and to allow other people (often a single other person) to take the initiative and assume responsibility for most major areas of their lives.” Neither disorder, Poch wrote,
“would necessarily render the patient incapable of distinguishing right from wrong or so grossly impair their perception or understanding of reality that they would be incapable of forming a culpable mental state. These disorders could and often do, however, place the patient under substantial duress which can negatively impact their emotional state as well as their capacity to appreciate the full consequences of their behaviors.”
Poch’s report did not mention the possible effect of Oliver’s mental disorders on his capacity to be truthful during police interrogation, but defense counsel’s intention to use the expert testimony to question the credibility of Oliver’s confession was clear from counsel’s written response to the State’s motion in limine.
The district court heard argument on the State’s motion, first inviting defense counsel to proffer further particulars of the anticipated expert testimony. Defense counsel declined to say anything more about the content of the testimony beyond what had already been disclosed in Poch’s report and the response to the motion in limine. The State argued that the post-traumatic stress disorder diagnosis, to the extent it arose out of the crimes, was irrelevant. As to the dependent personality disorder diagnosis, the prosecutor characterized any testimony regarding Oliver’s credibility as invading of the province of the jury. In the alternative, the prosecutor argued, if the court decided to allow the testimony out of an abundance of caution because of the capital charges, the testimony should be limited to the existence of the dependent personality diagnosis and the disorder’s tendency, as its name implies, to make Oliver dependent on others.
Defense counsel then responded:
“Frankly, Your Honor, ... if you’re going to side with what [the prosecutor] was saying at the end of his argument and allow us to put the doctor up to say he has these diagnoses, you might as well exclude the evidence altogether, because it doesn’t do us any good at all. We need to particularize how those diagnoses affect the confession, or the evidence is just floating around in vapor, doesn’t help us. I mean, it doesn’t help us explain what happened in this case. It doesn’t help us to develop any sort of exculpatory theory.”
The district court granted the State’s motion in limine, emphasizing that the interrogation of Oliver had been videotaped and that the jury would therefore have ample opportunity to view Oliver’s and the investigating officers’ behavior. The judge regarded Crane, 476 U.S. 683, as distinguishable:
“The psychological environment discussed in Crane is best defined by evidence of duress, coercion, trickery, deceit inflicted upon a defendant by law enforcement in order to extract a confession from an otherwise silent defendant or one proclaiming innocence.
“. . . [T]he psychological environment contemplated by Crane is behavior on the part of law enforcement tending to show that a defendant’s free and independent will was overcome by illegal law enforcement tactics. The evidence proposed by the defendant in this case is not of that nature.”
Defense counsel later made a proffer of the excluded evidence during the instructions conference. He said:
“As the Court knows, Dr. Poch has diagnosed Mr. Oliver with two mental disorders, one is post-traumatic stress disorder, the other is dependent personality disorder. His rationale for those diagnoses is contained in the report that we’re submitting with this proffer.
“He says that the characteristics of PTSD are present in Mr. Oliver, this disorder would impair his judgment and weaken his emotional responses. It could impact what Mr. Oliver would say in the confession, according to Dr. Poch.
“To make this analogy, he, Dr. Poch, refers to military studies of soldiers who are badly traumatized. He concludes that those soldiers are more likely to malee false statements to military tribunals. He says this military code of conduct, the entire military code of conduct is based on the psychological research.
“The conclusion in that code of conduct and from this psychological research is that those who suffer from PTSD are unreliable, will say things intended to remove them from the stressful environment of interrogation. He would not testify that is true of every person who is afflicted with this illness, but he says that is— that increases the likelihood of an unreliable statement.
“He also says the military spent millions of dollars studying this very problem and concluded that prior traumatic experiences and inter — as manifested in interview conditions like those in this case will often lead to an unreliable confession. Accused will simply say he did things that he didn’t do.
“The second diagnosis of dependent personality disorder, Dr. Poch says this would explain, among other things, Mr. Oliver’s demeanor during the — which somewhat flat affect during the — during interrogation, and his behavior about things like why he wouldn’t run away after the murders from Earl Bell, he says this diagnosis is corroborated by his interview, Dr. Poch’s interviews of other witnesses.
“He says that — Dr. Poch says that this can offer an explanation for why Mr. Oliver would confess to something he didn’t do. People with this disorder are more vulnerable to suggestions of responsibility than other interviewees.
“Dr. Poch also says that if in an environment and — interrogation environment where the defendant was at all being led along would be — was given facts about the crime and asked to confirm or deny them, this would also exacerbate the problem.
“Additionally, people with this disorder are more likely to try to obtain relief from an interrogation environment that they would consider veiy stressful. And that this dependent personality might explain why Mr. Oliver would confess to crimes that he didn’t commit.
“Dr. Poch’s — -Dr. Poch’s opinion, people in his situation with his mental defect may well say virtually anything to get themselves out of the interrogation room.
“What Dr. Poch would testify to in — in conclusion is that — that what could probably happen, given these diagnoses, was that there would be a high probability that Cornelius Oliver was giving untrue information, which diminishes the reliability of the confession.”
Also at the instructions conference, the defense requested instructions on felony murder, lesser included offenses of capital and first-degree murder, and compulsion. The district court judge gave lesser included instructions on first-degree premeditated and felony murder on each of the capital charges and instructed on felony murder as an alternative on the first-degree premeditated murder charge. The judge denied the defense requests for instructions on still lesser included offenses and rejected the compulsion instruction.
The jury convicted Oliver of first-degree premeditated murder in the killings of the two men, Levy and Williams, and of felony murder in the killings of the two women, Ford and Wheaton. The district court sentenced Oliver to two consecutive hard 50 sentences on the first-degree premeditated murder convictions and to two consecutive life sentences on the two felony-murder convictions.
Probable Cause for Arrest
The parties do not dispute which facts were known to police officers at the time of Oliver’s arrest, but Oliver argues those facts were insufficient to supply probable cause for a warrantless seizure of his person. As a result, he contends, his confession should have been suppressed as a fruit of the illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Appellate review of a question of law is unlimited. See State v. Boyd, 275 Kan. 271, Syl. ¶ 2, 64 P.3d 419 (2003) (where facts material to decision on motion to suppress not in dispute, question one of law).
K.S.A. 2004 Supp. 22-2401(c)(l) provides that a police officer may arrest a person if “[t]he officer has probable cause to believe that the person is committing or has committed ... [a] felony.” If a warrantless arrest is challenged by a defendant,
“the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment to the United States Constitution. The constitutional validity of a warrantless arrest depends on whether the arresting officer had probable cause to believe that the person arrested had committed a felony.” State v. Aikins, 261 Kan. 346, Syl. ¶ 2, 932 P.2d 408 (1997).
This court has defined probable cause as the reasonable belief that a specific crime has been committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). “Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt.” Abbott, 277 Kan. at 164. However, probable cause goes beyond mere suspicion. State v. Mayberry, 248 Kan. 369, 376, 807 P.2d 86 (1991).
This court considers the totality of the circumstances to determine whether probable cause existed. This includes “all of the information in the officer’s possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt.” Abbott, 277 Kan. at 164.
In addition, this court considers two factors when evaluating a warrantless arrest: “the seriousness of the alleged offense and the exigency of the situation, as where immediate arrest seems desirable because of the likelihood that the suspect will flee the jurisdiction.” Aikins, 261 Kan. 346, Syl. ¶ 5.
There can be no question in this case that the crimes were very serious. The defense argues, however, that Oliver was arrested without attempting to flee. The State responds that Oliver tried to walk away from his brother’s front porch.
Regardless of whether Oliver’s departure from the porch can be interpreted as an attempt to flee, the police possessed other evidence against him at the time of his warrantless arrest. The police knew that Wheaton had been Oliver’s girlfriend; that their romance had a violent history, including gunfire; that Oliver had threatened to kill Wheaton with a gun and had injured her shortly before the murder; that Oliver had vowed to “get” those helping Wheaton; that Oliver had stolen Wheaton’s car; that an anonymous person at the scene of the murders had handed an officer a note with defendant’s name on it; that Oliver was in a gang, and Jermaine Levy was in a rival gang; that .380 shells were found at fixe crime scene; and that a .380 shell was found at a house with which Oliver had an association.
We have previously upheld warrantless arrests when law enforcement had similar evidence.
In Aikins, a case charging felony murder of a liquor store attendant, this court held there was sufficient probable cause for arrest where evidence revealed: A witness testified she saw “a car, fitting the description of [the defendant’s] car, pull up to the side of the strip mall where the liquor store was located.” Aikins, 261 Kan. at 355. The witness saw. a person jump out of the car, run into the store, and run out. A friend of the defendant gave a similar description of the defendant’s car. She also stated that the car was used in the robbery and murder, and that the triggerman was staying in an apartment rented in the defendant’s name.
This court also held that the police had sufficient probable cause for the arrest of a suspect for the murder of his girlfriend when evidence revealed: The suspect lived with the victim part-time; the police knew that the suspect and the victim had fought the day before the murder and that the suspect had previously been convicted of the murder of a girlfriend; and the victim’s daughter accused the suspect of the killing. Mayberry, 248 Kan. at 377.
Considering all of the information in the possession of the police in this case and other circumstances — such as Oliver’s failure to surface to inquire about Wheaton, law enforcement’s reasonable apprehension that he might leave Wichita, and the seriousness of the crimes under investigation — we are satisfied that Oliver’s warrantless arrest met both the statutory and the constitutional standards. Because we find no error in denying suppression of the confession that followed Oliver’s arrest, we do not reach the State’s alternative argument that the confession was sufficiently attenuated from the arrest to be admissible.
Expert Testimony on Psychological Disorders and Defendant’s Credibility
Oliver’s next issue on appeal concerns the exclusion of Poch’s expert testimony about psychological disorders that could have led Oliver to confess falsely. The proffered evidence included Oliver’s diagnosis of post-traumatic stress disorder arising from witnessing the crimes and a diagnosis of dependent personality disorder. If permitted to testify, Poch also would have said that these diagnoses resulted in a “high probability” that Oliver gave untrue information in his confession. In other words, the testimony would have gone to Oliver’s credibility at the time of his confession, not to the voluntariness of that confession. Oliver contends that granting the State’s motion in limine to exclude his expert evidence violated the Sixth and Fourteenth Amendments and that the testimony was admissible under K.S.A. 60-456.
An appellate court generally reviews a trial court’s decision on a motion in limine under an abuse of discretion standard. State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002). However, our first question when examining a district court’s admission or exclusion of evidence is relevance. “Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004); see also State v. White, 279 Kan. 326, 341, 109 P.3d 1199 (2005) (applying de novo standard to reverse exclusion of expert psychological testimony regarding mental disease or defect; evidence admissible under K.S.A. 22-3220; because evidence integral part of theory of defense, exclusion violated fundamental right to fair trial).
It is obvious that evidence going to the credibility to be afforded a defendant’s confession is relevant. Beyond that, a district court’s decision on the evidentiary issue in this case should be informed by K.S.A. 60-456 and K.S.A. 22-3215.
K.S.A. 60-456 reads in pertinent part:
“(b) If the witness is testifying as an expert, testimony of the witness in die form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
Oliver is correct that Poch’s proffered testimony met the criteria set forth in these portions of K.S.A. 60-456. It was based on facts personally known to the witness and within the scope of his special knowledge. Moreover, although the credibility to be afforded Oliver’s confession would have had a direct impact on the jury’s consideration of the ultimate issue of his guilt or innocence, K.S.A. 60-456(d) makes it clear that exclusion was not necessitated on that basis.
Our statutory analysis does not end there, however. We next must turn to K.S.A. 22-3215, which addresses confessions in criminal cases. K.S.A. 22-3215(5) provides:
“The issue of the admissibility of the confession or admission shall not be submitted to the jury. The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon tire credibility or the weight to be given to the confession or admission.
In other words, “[t]he truth or falsity of a confession need not be considered by the trial court in determining its voluntariness.” State v. Harwick, 220 Kan. 572, 575, 552 P.2d 987 (1976). The determination of a confession’s truth or falsity is a question left to the jury at trial. A district judge has discretion to decide whether to admit evidence regarding the circumstances surrounding the making of the confession. See K.S.A. 22-3215(5) (such evidence may be submitted to the jury). We therefore review the district judge’s decision not to admit Poch’s testimony regarding Oliver’s diagnoses and their potential for affecting his reaction to interrogation under an abuse of discretion standard.
We must apply a different standard to the district judge’s decision on whether to admit Poch’s further testimony that there was a “high probability” Oliver lied during his confession. Our standard on that issue is de novo. See State v. Elnicki, 279 Kan. 47, 53, 105 P.3d 1222 (2005). A judge who permits one witness to opine on the credibility of another witness errs as a matter of law; credibility judgments are within the exclusive province of the jury. Elnicki, 279 Kan. at 53.
Under this standard, the district judge in this case did not err in refusing to admit Poch’s testimony that Oliver’s psychological conditions meant there was a “high probability” Oliver lied in his confession. The district judge would have erred in reaching the opposite conclusion.
• Whether the district judge abused his discretion in excluding the Poch testimony that stopped short of a credibility judgment requires further discussion.
Oliver urges us to draw an analogy between his case and the United States Supreme Court decision in Crane, 476 U.S. 683, and our opinion in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002). He also cites United States v. Adams, 271 F.3d 1236, 1245 (10th Cir. 2001), for the proposition that such testimony may be allowed in some circumstances, and distinguishes State v. Cobb, 30 Kan. App. 2d 544, 43 P.3d 855, rev. denied 274 Kan. 1115 (2002). We also consider the effect, if any, of our recent decision in State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005).
In Crane, the defendant, Major Crane, was interviewed about a service station robbery. During the interview, he confessed to his involvement in that crime as well as many others. The police then questioned him about a robbeiy and shooting at a local liquor store that resulted in the store clerk’s death. Crane confessed to that crime as well.
At a later suppression hearing, Crane claimed he had been coerced into confessing falsely. The court denied his motion to suppress, and Crane attempted to argue at trial that his confession should not be believed, based on the confession’s inconsistency with details of tire crime and the “very circumstances surrounding the giving of the [confession and] . . . [i]n particular, . . . evidence bearing on the length of the interrogation and the manner in which it was conducted.” 476 U.S. at 685. The district court refused to admit evidence of the circumstances of the interrogation.
The United States Supreme Court held:
“[T]he physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence. Confessions, even those that have been found to be voluntary, are not conclusive of guilt. . . . Indeed stripped of the power to describe to the jury the circumstances that prompted his confession, the defendant is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?” 476 U.S. at 689.
The Court went on to state that “evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility.” 476 U.S. at 691. For Crane, “introducing evidence of the physical circumstances that yielded the confession was all but indispensable to any chance of [his defense] succeeding.” 476 U.S. at 691. Accordingly, the court ruled that a blanket exclusion of testimony regarding the circumstances of the confession denied the defendant a fair trial. 476 U.S. at 691.
Crane plainly supports Oliver’s general argument that a criminal defendant ordinarily should be permitted to introduce evidence of the circumstances surrounding a confession arising from interrogation by law enforcement. As Oliver recognizes in his brief, this holding is equivalent to the language of the second sentence of K.S.A. 22-3215(5). Although Crane dealt with factors exterior to the defendant rather than with the defendant’s psychological makeup, we do not agree with the State that this is a distinction with a meaningful difference. The principle is the same in both situations.
We recognized this principle in Kleypas. In that case, we examined the applicability of Crane when the defendant had been permitted to challenge the reliability of his confession by introducing evidence from two experts regarding “confabulation.” Confabulation is an automatic process through which “one who has little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory.” 272 Kan. at 916.
Defendant Gary Kleypas argued that he should have been permitted to introduce expert testimony that he experienced a blackout on the night of the murder in question, that his memory of events was therefore impaired, and that the information he related in his confession while under interrogation was at least in part supplied by law enforcement officers. 272 Kan. at 916. The district court had denied Kleypas that opportunity, seeing evidence regarding a blackout on the night of the murder as an attempt to evade the notice and other requirements of K.S.A. 22-3219, the statute regulating defenses based on mental disease or defect. 272 Kan. at 917-18.
We distinguished the type of defense asserted by Kleypas — a temporary blackout caused by alcohol, chronic cocaine use, and organic brain damage — from an insanity or mental disease or defect defense and held the district court erred in refusing to admit the expert testimony regarding Kleypas’ blackout on the night of the murder. We nevertheless held that the exclusion was harmless error.
“While Kleypas claims that the exclusion of testimony concerning his blackout on the night of the murder denied him the right to present his defense, he was able to show that he had been drinking before the crimes, that there was evidence of extensive cocaine use prior to the night of the murder, and that he suffered from organic brain damage, all of which increased his chances of a blackout and the likelihood that the confession was the product of confabulation. When this evidence is considered with the testimony of [the experts], it becomes clear that Kleypas was given the opportunity to convince the jury that his confession was in part confabulated. The limitations imposed by the court did not, in our opinion, prevent Kleypas from presenting his theory of defense to the jury, and we are able to conclude beyond a reasonable doubt that the error had htde if any effect on the outcome.” 272 Kan. at 923.
This case differs from Kleypas in that confabulation is reflexive; when certain conditions are met, it requires no exercise of the defendant’s will to produce a falsehood. Here, Oliver sought to introduce psychological testimony on why he might have lied deliberately. Kleypas does, however, implicitly approve the practice of permitting a criminal defendant to attack the credibility of his or her earlier confession by introducing expert psychological evidence of the defendant’s condition at the time of the confession.
Adams, 271 F.3d 1236, the Tenth Circuit case cited by both parties, is less helpful to Oliver. It involved a defendant charged with possession of a firearm by a felon, who made a series of incriminating statements immediately after arrest. He sought to introduce the report of an expert psychologist which addressed his mental condition and education, factors that could be considered in judging the truthfulness of the incriminating statements. Adams, 271 F.3d at 1240.
The Adams panel first rejected the defendant’s effort to have de novo rather than abuse of discretion review applied to the issue. Like Oliver here, the Adams defendant asserted that his constitutional right to present his theory of defense had been violated. The panel disagreed, distinguishing the fundamental right to present a defense from a right “that is not fundamental, the right to present that theory in whatever manner and with whatever evidence he chooses.” Adams, 271 F.3d at 1243.
In addition, because the report had been excluded on a valid procedural basis — its untimely disclosure, the panel agreed with the district court’s exercise of its discretion. In terms of substance — the panel also concurred with the district court in spite of Crane. The Adams defendant claimed that he had lied to protect a girlfriend — much like Oliver’s assertion here that he protected Bell. As the panel observed in Adams, this is “precisely the type of explanation that a jury is capable of resolving without expert testimony.” Adams, 271 F.3d at 1246.
Oliver is more persuasive in distinguishing Cobb, 30 Kan. App. 2d 544. In that case, defendant Artis Cobb confessed to participating in the murders of Kasey Blount and her daughter, Alannah. At trial, the district court admitted expert testimony regarding the phenomenon of false confessions induced by the interrogation methods used on Cobb. The State argued that the admission of that evidence constituted an abuse of discretion, and the Court of Appeals panel agreed. 30 Kan. App. 2d at 564-67. It is clear that Cobb did not deal with the particular psychological makeup of the defendant or with the potential for interaction between that makeup and interrogation techniques used by law enforcement. It dealt only with the techniques themselves.
Likewise, our recent decision in Swanigan, 279 Kan. 18, is distinguishable. In that case, defendant Jami Del Swanigan challenged the district court’s rejection of his motion to suppress his statements to law enforcement as involuntary. We reversed in part because the district judge failed to consider Swanigan’s low intellectual functioning and a defense expert’s report and testimony regarding Swanigan’s susceptibility to being overcome by anxiety during interrogation. Here, we are not concerned with a judge’s voluntariness evaluation but rather a jury’s credibility determination. However, Swanigan, like Kleypas, demonstrates that this court has recognized the potential for psychological factors to influence the dynamics of an interrogation.
Oliver also directs our attention to cases from other jurisdictions, both federal and state. See United States v. Hall, 93 F.3d 1337, 1342-45 (7th Cir. 1996) (conviction reversed because trial judge failed to correctly employ Daubert analysis, Federal Rule of Evidence 702 to evaluate admissibility of expert testimony on false confessions and personality disorder; such testimony may assist the jury, give reason to reject “common sense” conclusion regarding facts); United States v. Shay, 57 F.3d 126, 131-34 (1st Cir. 1995) (rejecting wholesale exclusion under Federal Rule of Evidence 702 of expert testimony on defendant’s “psuedologia fantástica” disorder, which involves a compulsion to invent stories); Beagel v. State, 813 P.2d 699, 706-07 (Alaska App. 1991) (psychiatrist should have been permitted to testify regarding defendant’s confabulation caused by psychogenic amnesia); People v. Lopez, 946 P.2d 478, 484 (Colo. App. 1997) (psychologist should have been permitted to testify regarding circumstances surrounding defendant’s confession); McIntosh v. State, 532 So. 2d 1129, 1130-31 (Fla. Dist. App. 1988) (testimony regarding drug addiction, mother’s dominance should have been admitted); Holloman v. Commonwealth, 37 S.W.3d 764, 767-68 (Ky. 2001) (expert should have been permitted to testify on effect of mental retardation on ability to understand, communicate); State v. Buechler, 253 Neb. 727, 739, 572 N.W.2d 65 (1998) (court should have admitted proffered testimony regarding drug withdrawal, psychological disorders; testimony “undertook not to tell the juiy how to decide the case or what result should be reached on any issue to be resolved by it, but, rather, to explain [defendant’s ] mental state at the time of the recorded confession”); State v. Stringham, 2003 WL 950957 (Ohio App.) (error to exclude testimony on possible impact of psychotypal personality disorder on defendant’s reliability); State v. Wallen, 1995 WL 702611 (Tenn. Crim. App.) (on remand, trial court should consider admitting psychologist’s testimony regarding defendant’s mild mental retardation and poor reading comprehension); Pritchett v. Commonwealth, 263 Va. 182, 186-87, 557 S.E.2d 205 (2002) (error to disallow general expert psychological testimony regarding mild retardation resulting in tendency of defendant to be compliant, vulnerable to suggestion); State v. Miller, 1997 WL 328740 (Wash. App.) (social psychologist should have been permitted to testily generally on “why some people may confess to crimes they did not commit”).
For its part, the State responds that other jurisdictions are not uniformly in favor of admitting expert testimony on the effect a defendant’s psychological status may have on his or her confession. See Turtle v. State, 520 S.E.2d 211, 213-14 (Ga. 1999) (trial court’s exclusion of testimony that defendant exhibited symptoms of bipolar disorder, displayed tendency to grandiose fabrications correctly excluded; juiy capable of judging credibility without expert’s input); Bixler v. State, 582 N.W.2d 252, 255-56 (Minn.), cert. denied 525 U.S. 1056 (1998) (no abuse of discretion in disallowing psychological expert testimony on low intelligence, vulnerability to suggestion; juiy capable of “observing-and understanding [defendant’s] propensity to please authority figures”); State v. Loza, 71 Ohio St. 3d 61, 65-66, 641 N.E.2d 1082 (1994) (clinical psychologist’s testimony that defendant’s background, psychological makeup, personal code of conduct prohibiting “snitching” properly excluded; Crane distinguished).
Our reading of the clear majority of the cases from other jurisdictions reveals that most would allow experts to testify generally regarding a defendant’s mental condition and the likelihood of a person with a similar mental condition to give unreliable information. However, most of these cases either explicitly or implicitly limit such testimony to the theoretical or hypothetical; they would draw the line at permitting an expert to express a specific judgment or opinion on the credibility of the defendant’s particular confession in the case at bar. See, e.g., Hall, 93 F.3d at 1342-45 (proffer discussed expert’s theoretical testimony only); Shay, 57 F.3d at 133-34 (case reversed, remanded to determine whether testimony should be excluded for another reason, otherwise limited); United States v. Hall, 974 F. Supp. 1198, 1205 (C.D. Ill 1997) (decision on remand from Seventh Circuit; expert’s testimony admissible only to show correlation between false confessions and certain coercive police techniques but not “about matters of causation, specifically, whether the interrogation methods used in this case caused [the defendant] to falsely confess”); Stringham, 2003 WL 950957 (observing “expert witness may not render a personal opinion as to whether a particular witness is telling the truth,” testimony at issue would not have provided expert’s opinion about whether defendant’s confession reliable, would only better enable jury to evaluate reliability); Jackson v. Commonwealth, 266 Va. 423, 438-39, 587 S.E.2d 532 (2003) (expert’s testimony on transference as phenomenon making subject more prone to suggestion found admissible; however, no error to exclude expert’s testimony on truth or falsity of defendant’s statements); Pritchett, 557 S.E.2d at 207-08 (allowable testimony limited to hypothetical effect of mental retardation; expert may not testify defendant “just went along with what they said”); Miller, 1997 WL 328740 (expert testimony would be limited to “general discussion of false confessions”). The one exception appears to be the Alaska Court of Appeals decision in Beagel, 813 P.2d at 707-08, where the defendant’s proffer of psychiatric testimony included the witness’s anticipated statement: “I believe this is exactly what Mrs. Beagel did at the times that she was recorded on the tapes [of her incriminating statements].” Because the Beagel decision is among the earlier cases and is short on analysis when compared to the decisions from other jurisdictions, we are not inclined to accept its approach. We agree with the majority of the jurisdictions, which have recognized that allow ing an expert to say that a defendant’s mental condition specifically caused him or her to lie when confessing is a forbidden invasion of the jury’s province.
We also observe that, as demonstrated by Adams, other jurisdictions hold expert testimony on a defendant’s tendency toward false confessions would be inadmissible when the testimony actually would offer little help to the jury. See, e.g., Adams, 271 F.3d at 1246; Maine v. MacDonald, 718 A.2d 195, 198 (Me. 1998) (“[T]he court reasonably could have concluded that [the expert’s] testimony would do little more than reinforce a concept already well within the jurors’ grasps, namely, that people sometimes he to protect those close to them.”).
With all of these authorities in mind — Crane, Kansas statutes and precedents, and cases from other jurisdictions that have considered the question — we hold that a criminal defendant against whom a confession will be admitted may be permitted to introduce expert psychological or psychiatric testimony bearing on his or her ability to respond reliably to interrogation. It is essential, however, that the testimony actually tell jurors something they would not otherwise know from their usual human experience and that it remain hypothetical or theoretical. It must stop short of expressing the expert’s judgment on the defendant’s reliability in the specific instance of the confession submitted for the jury’s consideration.
We have purposely stated this holding permissively. A district judge may allow such evidence, but there may be independent reasons that are perfectly valid for disallowing it. The appellate standard of review remains abuse of discretion under K.S.A. 22-3215(5). See also Crane, 476 U.S. at 689 (“Constitution leaves to the judges who must make these decisions ‘wide latitude’ to exclude evidence that is ‘repetitive . . . , only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’ ”).
Here, the district judge’s refusal to admit Poch’s testimony did not amount to an abuse of discretion. The defense did not seek to admit the testimony until Oliver’s trial was under way. Poch’s written report was vague; it was not until defense counsel responded to the State’s motion in limine that the purpose of the testimony could be fairly understood. At argument on the State’s motion in limine, defense counsel initially declined to provide additional particulars. He was somewhat more expansive in response to the State’s assertion that the expert testimony should be limited to avoid interference with the jury’s role as credibility evaluator, stating that such a limitation would make the evidence useless to the defense. Finally, a more complete proffer, including the unacceptable “high probability” language, was made at the instructions conference.
Under these circumstances, the district judge reasonably resisted the defendant’s late-blooming, all-or-nothing demand to admit Poch’s testimony. There was no error, and we need not reach the question of harmlessness.
Instructions on Lesser Included Offenses
At trial, Oliver’s counsel requested instructions on second-degree murder and voluntary manslaughter as lesser included offenses. The district court denied defendant’s request, finding that the inclusion of defendant’s requested instruction on felony murder eliminated the need to give the lesser included offense instructions. The district court relied on State v. Williams, 263 Kan. 134, Syl. ¶ 1, 947 P.2d 25 (1997), which stated: “If the evidence of the underlying felony [is] strong, no instruction on the lesser included offenses [is] required.”
Because defendant “requested the instructions, this court must review the matter in a light most favorable to” defendant. See State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003).
“If the defendant requests the instructions, the trial court has a duty to instruct the juiy regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive. [Citations omitted.] An instruction on a lesser included crime, however, is not required if the jury could not reasonably convict the defendant of the lesser crime based on the evidence presented. [Citations omitted.]” Hoge, 276 Kan. at 805.
K.S.A. 2004 Supp. 21-3402 defines second-degree murder as “the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”
K.S.A. 21-3403 defines voluntary manslaughter as “the intentional killing of a human being committed: (a) upon a sudden quarrel or in the heat of passion.”
The difference between first-degree and second-degree murder is premeditation. Premeditation can be inferred from “ ‘ “(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.” ’ ” Hoge, 276 Kan. at 806 (quoting State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 [2000]).
Here, Oliver takes issue with the district judge’s conclusion that the inclusion of felony-murder instructions meant additional lesser included instructions were unnecessary. Oliver relies on State v. Boyd, 216 Kan. 373, 376-77, 532 P.2d 1064 (1975), in which this court reversed a conviction for failure to instruct on the lesser included offenses of premeditated murder even though the only evidence to support the defendant’s theory was the defendant’s testimony.
The State claims that the evidence did not support instructions on these lesser included offenses and that the Boyd decision is dated. The State asserts that this court should rely on its more recent decision in State v. Chism, 243 Kan. 484, 759 P.2d 105 (1988), which held: “If the undisputed evidence [of the underlying felony] is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser offenses are not required.” 243 Kan. at 487. The State also distinguishes this court’s more recent decision State v. Hoge, 276 Kan. at 805.
In Hoge, the defendant was charged with alternative counts of first-degree premeditated murder and felony murder for the death of Ivan Winn. The members of the juiy returned a guilty verdict for first-degree murder under the combined theories because they were unable to reach a unanimous verdict. This court decided that whether the lesser included offense instructions should have been given had to be decided by analyzing each of the alternative theories of first-degree murder individually. Hoge, 276 Kan. at 805. The instructions were not required under the felony-murder theory because there was sufficient evidence of the underlying felony. Hoge, 276 Kan. at 805. Under the premeditated murder theory, the instructions were unwarranted because the evidence supported an inference of premeditation. Hoge, 276 Kan. at 806-07.
In this case, Oliver was charged with first-degree premeditated murder of Levy and with capital murder of Williams, Ford, and Wheaton. On Levy’s murder, the jury was instructed on both theories of first-degree murder, premeditated and felony; it convicted Oliver of first-degree premeditated murder. On each of the three other murders, the jury was instructed on capital murder and both theories of first-degree murder. Oliver was convicted of first-degree premeditated murder in Williams’ death and of felony murder in the deaths of Ford and Wheaton. None of Oliver’s four convictions is comparable to the conviction at issue in Hoge. Oliver’s jury was unanimous on one of the theories of first-degree murder on each conviction, rather than convicting on a combined theoiy.
With regard to the two male victims, Levy and Williams, there was inadequate evidence to require giving either a second-degree murder or voluntary manslaughter instruction. Evidence of premeditation, in contrast, was abundant.
All or nearly all of the factors we have previously enumerated as indicative of premeditation were present. The weapons used were deadly, two guns. The evidence was that the shooter switched guns when one malfunctioned and switched back when the first gun became operational. Even considering Oliver’s testimony, there was no evidence of provocation sufficient to support the deadly violence of the shootings. A court is not required to instruct on voluntary manslaughter unless the evidence shows “ ‘that the heat of passion alleged resulted from severe provocation sufficient to cause an ordinary person to lose control of his or her actions or reason. [Citation omitted.] The provocation must consist of more than mere words or gestures.’ ” State v. Bell, 273 Kan. 49, 51, 41 P.3d 783 (2002) (quoting State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 [2001]). In addition, the evidence regarding the positions of the men’s bodies demonstrated that they had not adopted either aggressive or defensive postures before they were shot. Oliver’s behavior before and after the killing — at least one threat toward Wheaton’s friends; his inappropriate dress for the December weather, suggesting a desire to conceal the blood on his clothes; his avoidance of contact with the police after the crimes; his statement to police that he would have shot anyone else unlucky enough to be present because “you can’t leave witnesses at something like this” — also have a tendency to prove premeditation. Finally, both Levy and Williams sustained more than one wound. Levy had been shot once in the back of the head and once in the neck; Williams had three gunshot wounds to the head. This physical evidence demonstrated that lethal shots may have been fired after the two men were rendered helpless.
With regard to the two female victims, we agree with the State that Chism is controlling. There was no need for instructions on second-degree murder or voluntary manslaughter in this case, because the evidence of the underlying felony of aggravated robbery was not weak or inconclusive.
Instruction on Compulsion
Oliver also argues that the district court committed reversible error by refusing to give an instruction on compulsion. He acknowledges that compulsion is not a defense to murder but argues it should have been a defense to the aggravated robbery, the underlying felony for felony murder. The State contends that evidence to support a compulsion instruction was insufficient.
The district court “must instruct the juiy on the law applicable to the defendant’s theories for which there is supporting evidence.” State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004). “A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony. [Citation omitted.]” State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003). Further, as mentioned, this court reviews the evidence in the light most favorable to the party requesting the instruction when considering the district court’s refusal to give a requested instruction. Williams, 277 Kan. at 356.
The statute governing the compulsion defense in Kansas states:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.” K.S.A. 21-3209.
Oliver argues that, when the evidence is viewed in the light most favorable to him, it shows he did not know that Bell was planning to rob anyone at the time he agreed to cooperate with Bell, that Oliver checked Levy’s pocket only under duress, and that Bell was holding a gun and directing his actions. He argues therefore that he did not willfully place himself in the situation, and he was afraid his life would be in danger if he did not comply with Bell’s directions.
Defendant relies on State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987), in which this court held that it was the jury’s function to decide if a defendant was afraid for his or her life, if the fear was reasonable, and if such fear justified a criminal act. “When the trial judge refused the requested compulsion instruction, [the judge] effectively prevented the jury from considering the evidence presented in [defendant’s] defense.” 241 Kan. at 646.
Although there was some minimal evidence that Oliver was under the influence of Bell, there was no evidence supporting the degree of compulsion necessary to merit an instruction on that defense.
Hard 50 Sentencing Statute
Oliver’s final argument on appeal is that his hard 50 sentences for each of his premeditated murder convictions pursuant to K.S.A. 2004 Supp. 21-4635 should be vacated because the statute is unconstitutional in light of the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This court has de novo review over such constitutional questions. See State v. Beard, 274 Kan. 181, Syl. ¶ 1, 49 P.3d 492 (2002).
We have rejected this argument numerous times and do so again today. See, e.g., State v. Wilkerson, 278 Kan. 147, Syl. ¶ 12, 91 P.3d 1181 (2004); State v. Hebert, 277 Kan. 61, 107-08, 82 P.3d 470 (2004).
Affirmed.
Gernon, J., not participating.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator’s office against the respondent, Nancy L. Moore, an attorney admitted to the practice of law in Kansas, alleging violations of Kansas Rules of Professional Conduct (KRPC) 1.3 (2005 Kan. Ct. R. Annot. 369) (diligence); 1.4(a) (2005 Kan. Ct. R. Annot. 383) (communication); 5.5 (2005 Kan. Ct. R. Annot. 488) (unauthorized practice of law); and 8.1(b) (2005 Kan. Ct. R. Annot. 499) (bar admission and disciplinary matters). Violations of Supreme Court Rule 207 (2005 Kan. Ct. R. Annot. 271) (duties of the bar and judiciary) and Rule 211(b) (2005 Kan. Ct. R. Annot. 287) (formal hearings) were also alleged. Respondent did not file a written answer to the complaint.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on June 2, 2005, in Topeka, Kansas. Respondent failed to.appear.
After hearing the testimony presented and the arguments of the Disciplinary Administrator, and after reviewing the exhibits admitted into evidence, the panel made the following findings of fact:
“1. . . . The Respondent was admitted to the practice of law in the state of Kansas on April 15, 1987.
“DA9098
“2. In 2003, the Respondent represented Robert Rupert in a criminal case in Montgomery County, Kansas. Later, in December, 2003, Mr. Rupert filed a complaint against the Respondent with the Disciplinary Administrator’s office.
“3. On December 4,2003, the Deputy Disciplinary Administrator sent a letter to the Respondent notifying her of Mr. Rupert’s complaint and requesting that she provide a written response within 15 days. The Respondent failed to provide the written response as requested.
“4. Because the Respondent did not respond to tire December 4,2003, letter, the Deputy Disciplinary Administrator docketed Mr. Rupert’s complaint for investigation. On January 8, 2004, the Disciplinary Administrator sent a letter to the Respondent notifying her that Mr. Rupert’s complaint had been docketed and requesting that the Respondent provide a written response to Mr. Rupert’s complaint within 20 days. The Respondent failed to provide a written response as requested.
“5. John Gatz, Chairman of the Kansas Bar Association’s Ethics and Grievance Committee appointed Jeffrey A. Chubb to investigate the complaint filed by Mr. Rupert. On January 16, 2004, Mr. Chubb wrote to the Respondent requesting that the Respondent provide a full and complete response to Mr. Rupert’s complaint. The Respondent failed to respond to Mr. Rupert’s complaint as requested.
“6. While Mr. Rupert’s complaint was pending, Mr. Chubb learned that Zaclceiy E. Reynolds had been appointed to investigate other disciplinary complaints. Mr. Chubb contacted Mr. Reynolds about how to contact the Respondent. They agreed to have a joint meeting in the event they were able to contact the Respondent.
“7. On June 1, 2004, the Respondent appeared in court before the Honorable Judd Dent. Following the court appearance, Judge Dent informed the Respondent that Mr. Chubb needed to meet with the Respondent regarding disciplinary complaints. Judge Dent directed the Respondent to go to Mr. Chubb’s office.
“8. The Respondent went to Mr. Chubb’s office. Mr. Chubb was available and [he] met with the Respondent regarding Mr. Rupert’s complaint. However, the Respondent never provided a written response to Mr. Rupert’s complaint.
“DA9099
“9. The Respondent represented David Richard in a post-conviction matter in Montgomery County, Kansas. On December 24, 2003, Mr. Richard filed a complaint against the Respondent.
“10. On January 8, 2004, the Deputy Disciplinary Administrator wrote to the Respondent, notified her of Mr. Richard’s complaint, and requested that she provide a written response to the complaint within 20 days. The Respondent failed to provide a written response as requested.
“11. Mr. Gatz also appointed Mr. Chubb to investigate the complaint filed by Mr. Richard. On January 16, 2004, Mr. Chubb wrote to the Respondent requesting that the Respondent provide a full and complete response to Mr. Richard’s complaint. The Respondent failed to respond to Mr. Richard’s complaint as requested.
“12. While the Respondent was in Mr. Chubb’s office on June 1, 2004, the Respondent and Mr. Chubb discussed the complaint filed by Mr. Richard. Again, the Respondent never provided a written response to Mr. Richard’s complaint.
"DA9109
“13. The Respondent represented Stephen Dorman in a post-conviction matter. On November 29, 2003, Mr. Dorman filed a complaint against the Respondent. On December 10, 2003, the Disciplinary Administrator wrote to the Respondent, notified her that Mr. Dorman filed a complaint, and requested that the Respondent provide a written response to the complaint within 15 days. The Respondent failed to comply with the Disciplinary Administrator’s request for a written response to the complaint.
“14. Recause the Respondent failed to provide a written response to the complaint, the Disciplinary Administrator docketed Mr. Dorman’s complaint for investigation. On January 21, 2004, the Disciplinary Administrator again wrote to the Respondent, notified her that Mr. Dorman’s complaint had been docketed for investigation, and requested that the Respondent provide a written response to the complaint. The Respondent failed to provide a written response to the complaint as requested by the Disciplinary Administrator.
“15. Mr. Gatz appointed Mr. Reynolds to investigate Mr. Dorman’s complaint. On March 31, 2004, Mr. Reynolds wrote to the Respondent requesting that she contact Mr. Reynolds to make arrangements for a meeting to discuss the pending disciplinary complaints. The Respondent never contacted Mr. Reynolds.
“16. Mr. Reynolds called the Respondent by telephone several times. Mr. Reynolds was unable to reach the Respondent. The Respondent failed to return Mr. Reynolds’ telephone calls.
“17. While the Respondent was in Mr. Chubb’s office, on June 1, 2004, Mr. Chubb called Mr. Reynolds. At that time, the Respondent and Mr. Reynolds discussed the complaint filed by Mr. Dorman. Mr. Reynolds requested that the Respondent provide Mr. Reynolds with documentation. The Respondent failed to provide the requested documentation. On July 20, 2004, Mr. Reynolds wrote to tire Respondent and, again, asked her to provide documentation regarding the Respondent’s representation of Mr. Dorman. The Respondent never responded to Mr. Reynolds July 20, 2004, letter and never provided a written response to Mr. Dorman’s complaint.
“DA9150
“18. The Respondent represented Farlando McCarrell in three criminal cases. In early 2004, Mr. McCarrell filed a complaint against the Respondent with the Disciplinary Administrator’s office. On February 26, 2004, the Deputy Disciplinary Administrator wrote to the Respondent, notified her of Mr. McCarrell’s complaint, informed her that Mr. McCarrell’s complaint had been docketed, and requested that the Respondent provide a written response to the complaint. The Respondent failed to provide a written response to the complaint as requested.
“19. Mr. Gatz appointed Mr. Reynolds to investigate Mr. McCarrell’s complaint. On March 31, 2004, Mr. Reynolds wrote to the Respondent requesting that she contact him to make arrangements for a meeting to discuss the pending disciplinary complaints. The Respondent never contacted Mr. Reynolds.
“20. Mr. Reynolds called the Respondent by telephone several times to discuss Mr. McCarrell’s complaint. Mr. Reynolds was unable to contact the Respondent. The Respondent failed to return Mr. Reynolds’ telephone calls.
“21. While the Respondent was in Mr. Chubb’s office, on June 1, 2004, Mr. Chubb called Mr. Reynolds. At that time, the Respondent and Mr. Reynolds discussed the complaint filed by Mr. McCarrell. The Respondent never provided a written response to Mr. McCarrell’s complaint.
“DA9174
“22. Patrick and Angela Hugo owned a business, Kitchen Gallery, LLC, which manufactured kitchen cabinets. The Hugos were in substantial financial difficulty and Mr. Hugo faced potential criminal prosecution for taking payments for cabinets and not filling the cabinet orders.
“23. In May, 2003, Mr. and Mrs. Hugo retained the Respondent. The Respondent was retained to advise Mr. and Mrs. Hugo regarding bankruptcy laws and file a bankruptcy case. Mr. and Mrs. Hugo wanted the Respondent to file a bankruptcy case immediately. The Respondent did not file the bankruptcy case immediately.
“24. In August, 2003, the Respondent prepared a draft copy of bankruptcy pleadings. Mr. and Mrs. Hugo reviewed die draft, made some changes, and returned die documents to the Respondent. After receiving the documents from Mr. and Mrs. Hugo, the Respondent took no action to get Mr. and Mrs. Hugo’s bankruptcy case filed.
“25. Mr. and Mrs. Hugo continued to try to contact the Respondent regarding their bankruptcy and other matters diat continued to arise. The Respondent did not respond to dieir written communication nor did she return their telephone calls.
“26. On March 2, 2004, Mr. and Mrs. Hugo contacted Richard Medley regarding the difficulties diey were having widi die Respondent. On that date, Mr. Medley wrote to the Respondent demanding diat she return the legal fee paid by Mr. and Mrs. Hugo and make their file available to him.
“27. Also, on March 2, 2004, die Respondent finally filed a bankruptcy case on behalf of Mr. and Mrs. Hugo. The bankruptcy pleadings had been prepared many mondis previously. The clients’ circumstances had changed. Respondent filed die bankruptcy case without updating die information contained in the schedules or review and signature by the clients. The pleadings the Respondent filed contained errors.
“28. Additionally, on March 2, 2004, Mr. and Mrs. Hugo filed a complaint against the Respondent regarding her representation of them.
“29. On March 3, 2004, the Respondent forwarded her file to Mr. Medley.
“30. Mr. and Mrs. Hugo retained Mr. Medley to represent them in the bankruptcy case. Mr. Medley corrected the errors contained in die pleadings filed by die Respondent.
“31. On March 15, 2004, the Deputy Disciplinary Administrator wrote to the Respondent, notified her of Mr. and Mrs. Hugo’s complaint, informed her that Mr. and Mrs. Hugo’s complaint had been docketed, and requested that the Respondent provide a written response to the complaint. The Respondent failed to provide a written response to the complaint as requested.
“32. Mr. Gatz appointed Mr. Reynolds to investigate Mr. and Mrs. Hugo’s complaint. On March 31,2004, Mr. Reynolds wrote to die Respondent requesting that she contact Mr. Reynolds to make arrangements for a meeting to discuss the pending disciplinary complaints. The Respondent never contacted Mr. Reynolds.
“33. Mr. Reynolds called the Respondent by telephone several times. Mr. Reynolds was unable to contact the Respondent. The Respondent failed to return Mr. Reynolds’ telephone calls.
“34. While the Respondent was in Mr. Chubb’s office on June 1, 2004, Mr. Chubb called Mr. Reynolds. At that time, the Respondent and Mr. Reynolds discussed the complaint filed by Mr. and Mrs. Hugo. The Respondent never provided a written response to Mr. and Mrs. Hugo’s complaint.
“DA9199
“35. The Respondent represented Ryan Johnson in relation to a criminal matter. On April 12, 2004, Mr. Johnson filed a complaint against the Respondent. On April 14, 2004, the Deputy Disciplinary Administrator wrote to the Respondent, notified her of Mr. Johnson’s complaint, informed her that Mr. Johnson’s complaint had been docketed, and requested that the Respondent provide a written response to the complaint within 20 days. The Respondent failed to provide a written response to Mr. Johnson’s complaint as requested.
“36. Mr. Gatz appointed Mr. Chubb to investigate Mr. Johnson’s complaint lodged against the Respondent. While the Respondent was in Mr. Chubb’s office on June 1, 2004, Mr. Chubb and the Respondent discussed Mr. Johnson’s complaint. The Respondent never provided a written response to Mr. Johnson’s complaint.
“DA9370
“37. On October 6, 2004, the Kansas Supreme Court issued an order suspending the Respondent from the practice of law in the state of Kansas for fading to pay her registration fee and for failing to pay the annual continuing legal education fee. To date, the Respondent’s license to practice law in the state of Kansas remains suspended.
“38. The Respondent appeared in court in behalf of clients after her license to practice law had been suspended. Specifically, the Respondent appeared in court in behalf of clients on October 7, 2004, October 13,2004, October 27,2004, and October 28, 2004.
“39. On November 1, 2004, the Honorable Judd Dent of the 14th Judicial District personally informed the Respondent that her license to practice law had been suspended. On November 2, 2004, Judge Dent forwarded a complaint to the Disciplinary Administrator’s office, alleging that the Respondent practiced law after her license to do so had been suspended.
“40. On November 12, 2004, the Disciplinary Administrator wrote to the Respondent, notified her of Judge Dent’s complaint, informed her that Judge Dent’s complaint had been docketed, and requested that the Respondent provide a written response to the complaint within 20 days. The Respondent failed to provide a written response to Judge Dent’s complaint as requested.
“41. David L. Wood, Special Investigator for the Disciplinary Administrator’s office contacted the Respondent. On January 25, 2005, Mr. Wood met with the Respondent in a conference room at the public library in Coffeyville, Kansas. During the meeting, Mr. Wood informed the Respondent that she needed to provide a written response to the complaint filed by Judge Dent. The Respondent informed Mr. Wood that she did not have access to her computer. Mr. Wood suggested that the Respondent provide a handwritten response to Judge Dent’s complaint. The Respondent agreed to provide a handwritten response to Judge Dent’s complaint. The Respondent failed to provide a response to Judge Dent’s complaint.”
The Panel made the following conclusions of law:
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1, Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b) as detailed below.
“2. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on tire Respondent’s most recent registration. Accordingly, the Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. and Mrs. Hugo when she failed to timely file a bankruptcy case. The Kansas Rules of Professional Conduct prohibit an attorney from agreeing to provide representation and then fail to take any steps for an extended period of time to complete the representation. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. and Mrs. Hugo, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when she failed to respond to Mr. and Mrs. Hugo’s written communications and when she failed to return Mr. and Mrs. Hugo’s telephone calls. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. The Kansas Rules of Professional Conduct provide that ‘a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.’ KRPC 5.5(a). Even though the Respondent’s license to practice law in Kansas was suspended, she continued to practice law by making court appearances in behalf of clients. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a) when she appeared in court in behalf of clients following the- October 6, 2004, suspension of her license to practice law.
“6. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirement in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority. . . .’ KRPC 8.1[b].
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciphnaiy Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that she was required to forward.a written response to each of die complaints — she had been repeatedly instructed to do so in writing by the Disciplinary Administrator, the Deputy Disciplinary Administrator, Mr. Chubb, and Mr. Reynolds. Finally, the Respondent was personally instructed to provide a written response to Judge Dent’s complaint by Mr. Wood. Because the Respondent knowingly failed to provide a written response to the complaints filed by Mr. Rupert, Mr. Richard, Mr. Dorman, Mr. McCarrell, Mr. and Mrs. Hugo, Mr. Johnson, and Judge Dent, as requested by the Disciphnaiy Administrator, the Deputy Disciplinary Administrator, Mr. Chubb, Mr. Reynolds, and Mr. Wood, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“7. Kan. Sup. Ct. R. 211(b) provides, in pertinent part:
‘The respondent shall serve an answer upon the Disciphnaiy Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’ In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“8. While the Deputy Disciplinary Administrator submitted some evidence that the Respondent violated KRPC 1.1, KRPC 1.5, and KRPC 8.4(c), the evidence did not amount to clear and convincing evidence. Accordingly, the Hearing Panel dismisses the allegations that the Respondent violated KRPC 1.1, KRPC 1.5, and KRPC 8.4(c).”
In making its recommendation for discipline, the Hearing Panel considered the following factors as outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions.
“Duty Violated. The Respondent violated her duty to her clients to provide diligent representation and adequate communication. Further, the Respondent violated her duty to the legal profession to cooperate in disciplinary investigations.
“Mental State. The Respondent knowingly violated her duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to the legal profession and to Mr. and Mrs. Hugo.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“A Pattern of Misconduct. Included in this case are seven complaints. In each case, the Respondent failed to cooperate in the disciplinary investigation. As such, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1, Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that she was required to provide written responses to the complaints filed by Mr. Rupert, Mr. Richard, Mr. Dorman, Mr. McCarrell, Mr. and Mrs. Hugo, Mr. Johnson, and Judge Dent. The Respondent never filed such responses. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1987. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 16 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time she engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommen dation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. From the testimony, it appears that the Respondent suffers from alcohol abuse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2.”
The hearing panel unanimously recommends that Respondent be indefinitely suspended from the practice of law. The hearing panel further recommends that respondent undergo a complete drug and alcohol evaluation and comply with all recommendations for treatment as a condition to reinstatement. The Deputy Disciplinary Administrator recommends that the respondent be disbarred.
The respondent filed no exceptions to the panel’s report, and having been notified of these proceedings, failed to appear at the time of scheduled oral argument. This failure to appear constitutes a violation of Supreme Court Rule 212(d) (2005 Kan. Ct. R. Annot. 297).
We conclude the panel’s findings are established by clear and convincing evidence, and adopt the panel’s conclusions of law. A majority of the court agrees with the panel’s recommendation that respondent be indefinitely suspended. A minority of the court would disbar the respondent.
It Is Therefore Ordered that respondent Nancy L. Moore be and she is hereby indefinitely suspended from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(2) (2005 Kan. Ct. R. Annot. 247) for her violations of the KRPC and Supreme Court Rules.
It Is Further Ordered that Nancy L. Moore shall comply with Supreme Court Rule 218 (2005 Kan. Ct. R. Annot. 315), that the costs of this action be assessed to respondent, and that this order be published in the official Kansas Reports.
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The opinion of the court was delivered by
Allegrucci, J.:
Michael Patten was convicted by a jury of manufacture of methamphetamine, possession of methamphetamine, felony possession of drug paraphernalia, and possession of marijuana. Patten was sentenced to 154 months’ imprisonment for manufacture of methamphetamine, 11 months each for possession of methamphetamine and drug paraphernalia, and 365 days for possession of marijuana. The terms are concurrent. The Court of Appeals affirmed his convictions, vacated the sentence for manufacture of methamphetamine, and remanded for resentencing to a drug severity level 3 felony pursuant to State v. McAdam, 277 Kan. 136, Syl. ¶ 3, 83 P.3d 161 (2004). This court granted Patten’s pe tition for review on the single issue of whether the charges of possession of drug paraphernalia in violation of K.S.A. 65-4152(a)(3) and manufacture of methamphetamine in violation of K.S.A. 65-4159 are multiplicitous.
On the evening of December 27, 2001, Deputy Jon Hawkinson was sent to investigate a suspicious vehicle that was parked along the side of a county road in McPherson County. The deputy found a Ford Bronco with a small travel trailer attached; Patten was in the driver’s seat, and Haril D. Ripka, Jr., was in the front passenger’s seat. Patten told tire officer his driver’s license might be in the travel trailer. Patten had purchased the travel trailer in November 2001. Patten unlocked the trailer with a key that he took from his pants pocket. After Patten was unable to produce his identification, Hawkinson called for back-up. While waiting for back-up, Hawkinson checked the Bronco’s license plate and was informed that the vehicle had been reported stolen. Patten and Ripka were arrested.
When Highway Patrol Trooper Chris Bauer and another officer arrived at the scene, they went into the trailer to check for someone who might pose a threat. While checking the trailer, Bauer noticed two propane tanks at one end of the trailer and smelled anhydrous ammonia. From his training and experience, Bauer was aware that these items were used in the production of methamphetamine. Bauer informed Deputy Hawkinson that he suspected there was a methamphetamine lab inside the trader. Hawkinson then contacted the narcotics detective, Darren Frazier. While waiting for Frazier, Hawkinson and Bauer looked inside the Bronco. In the driver’s seat they found a shaving bag that contained suspected methamphetamine, a 9 millimeter handgun,- a loaded magazine, and drug paraphernalia — a spoon with burnt residue, a piece of aluminum foil with burnt residue, and a lighter. Testing of the powder found in the shaving bag revealed it was methamphetamine. When searched, Patten had marijuana in his front pocket.
Detective Frazier obtained a search warrant for the trailer and found a number of items that would be used in a methamphetamine lab. The items included glass jars with chemical residue inside, Coleman fuel, salt, gassing generators, anhydrous ammonia, propane bottles, kitchen matches, Sudafed, coffee filters, muriatic acid, and sulfuric acid. The coffee filters smelled of anhydrous ammonia. Officers also found lithium batteries in the Bronco and a list of items used in methamphetamine production in Patten’s wallet. At trial, Frazier testified he was certain that the trailer contained a mobile methamphetamine laboratory and that, based on the anhydrous ammonia in the trailer and solvent in containers in the trailer’s refrigerator and bathroom, he believed methamphetamine production was ongoing or had occurred recently.
In the Court of Appeals, Patten argued that the possession of drug paraphernalia charge was a lesser included offense of manufacturing methamphetamine. The Court of Appeals stated:
“Patten contends that under 21-3107(2)(b), possession of drug paraphernalia is a lesser included offense of manufacture of methamphetamine because possession of drug paraphernalia is a necessary element of manufacture of methamphetamine. From the clear language of 21-3107(2), however, the appropriate test is whether all elements set forth for possession of drug paraphernalia under K.S.A. 65-4152(a)(3) are identical to some of the elements of manufacture of methamphetamine under K.S.A. 65-4159(a).
“The statute which defines the offense of manufacturing a controlled substance, K.S.A. 65-4159(a), provides in part: ‘[I]t shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.’ The statute which defines possession of drug paraphernalia, K.S.A. 65-4152(a)(3), provides that no person shall use or possess with intent to use ‘(3) any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.’
“A comparison of these two statutes fails to reveal that all of the elements of possession of drug paraphernalia under K.S.A. 65-4152(a)(3) are identical to some of the elements of manufacture of methamphetamine under K.S.A. 65-4159(a). In order to establish possession of drug paraphernalia under K.S.A. 65-4152(a)(3), the State had to prove that Patten knowingly possessed with the intent to use drug paraphernalia to manufacture, produce, or process a controlled substance. See PIK Crim. 3d 67.17. In order to establish manufacture of methamphetamine, the State was required to prove that Patten intentionally manufactured methamphetamine. See PIK Crim. 3d 67.21. Each of these crimes have different elements and, therefore, it is clear that the legislature did not intend for possession of drug paraphernalia under K.S.A. 65-4152(a) to be a lesser included offense of manufacture of methamphetamine under K.S.A. 65-4159(a).” Slip op. at 15-17.
This court granted defendant’s petition for review and ordered the parties to show cause why the judgment of the Court of Appeals affirming Patten’s convictions for possession of drug paraphernalia and manufacture of methamphetamine should not be summarily affirmed in light of this court’s decision in State v. Stevens, 278 Kan. 441, 101 P.3d 1190 (2004). On February 2, 2005, this court discharged the show cause order, stating: “Upon due consideration of the Show Cause Order and responses, it is the decision of this court that our decision in Stevens does not control the issue in the present appeal. Therefore, this appeal is not subject to summary disposition pursuant to Supreme Court Rule 7.041 (2004 Kan. Ct. R. Annot. 49).”
Now before this court, Patten contends that his convictions of manufacture of methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine are multiplicitous.
“Multiplicity is tile 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 of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.” State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).
Whether convictions are multiplicitous is a question of law subject to unlimited review. 272 Kan. at 171.
In State v. Schuette, 273 Kan. 593, 600-01, 44 P.3d 459 (2002), the court stated that there were two roots of multiplicity, noting:
“ ‘The concept of multiplicity in Kansas comes from two sources. The first is the traditional “common-law” multiplicity concept. This exists where the State attempts to use a single wrongful act as the basis for multiple charges and is based on the merger of the charges. State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). This concept has been a part of Kansas law since at least our decision in State v. Colgate, 31 Kan. 511, 515, 3 Pac. 346 (1884), wherein we stated: “[Ujpon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense.” The test for whether the offenses merge and are, therefore, multiplicitous is whether each offense charged requires proof of a fact not required in proving the other; if so, then the offenses do not merge and are not multiplicitous. Garnes, 229 Kan. at 373. Offenses also do not merge if they are committed separately and severally at different times and at different places. 229 Kan. at 373.’
“The second source, or layer, of the multiplicity analysis formerly came by statute in K.S.A. 21-3107(2)(d). K.S.A. 21-3107(2)(d) defined an included offense as ‘a crime necessarily proved if the crime charged were proved’ and stated that a defendant could not be convicted of both the crime charged and the included offense. This statute was amended in 1998, and subsection (2)(d) was ehminated. L. 1998, ch. 185, sec. 1. It was replaced with language defining an included crime as ‘a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.’ See K.S.A. 2001 Supp. 21-3107(2)(b). The present statutory language in essence mirrors the common-law elements test, thereby leaving it as the only remaining test for multiplicity. See also State v. Saiz, 269 Kan. 657, 662-63, 7 P.3d 1214 (2000) (for crimes committed after effective date of 1998 amendment of K.S.A. 21-3107, second prong of State v. Fike, 243 Kan. 365, 757 P.2d 724 [1988], disregarded).” 273 Kan. at 600-01.
What remains from the two sources are slight variations in the wording of the tests. The “common-law” elements test is whether each offense charged requires proof of a fact not required in proving the other; if so, the offenses do not merge and are not multiplicitous. State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981); see State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004). The other test is “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.” Stevens, 278 Kan. 441, Syl. ¶ 3. Perhaps the tests are the same, but the “common-law” elements test’s attention to proof of a fact more strongly suggests consideration of the proof of particular circumstances of a case than does the other test’s proof of an element. Hence, the language of the tests broaches some ambiguity as to the nature of the analysis. The question is: Does the test take into account what facts were proved in satisfaction of the elements or is the question of multiplicity strictly limited to the abstract elements of the offenses charged?
Recent decisions of our appellate court reflect a mix of approaches, including examination only of the elements where the test is stated in terms of “proof of a fact” and examination of the proof of a fact where the test is stated in terms of “proof of an element.” As an example, the Schuette court stated the test in terms of “proof of a fact” and then examined only the elements. 273 Kan. at 601. Schuette argued that his convictions of telephone harass ment and criminal threat were multiplicitous. The court rejected his contention, noting:
“Criminal threat is defined in relevant part as 'any threat to . . . [c]ommit violence communicated with intent to terrorize another.’ K.S.A. 21-3419(a)(1). Harassment by telephone is, for purposes applicable to this charge, 'use of telephone communication for . . . making a telephone call, whether or not conversation ensues, . . . with intent to abuse, threaten or harass any person at the called number.’ K.S.A. 21-4113(a)(2).” 273 Kan. at 601.
The court concluded that “[c]riminal threat requires that the threat be communicated.” 273 Kan. at 601.
The Schuette court then reasoned:
“Communication is not a required element of harassment by telephone. Harassment by telephone requires using a telephone with the intent to harass, abuse, or threaten the person called. A defendant need not use a telephone in order to be found guilty of criminal threat. In that criminal threat requires proof that the threat was communicated and telephone harassment does not, and telephone harassment requires proof that the telephone was used and criminal threat does not, the two offenses do not merge in the present context.” 273 Kan. at 601-02.
The Schuette court concluded that the convictions were not multiplicitous.
In Stevens, the court stated the test for multiplicity in terms of “proof of an element” and examined the proof of a fact. 278 Kan. at 447. Stevens argued that his convictions of attempted manufacture of methamphetamine and possession of ephedrine or pseudoephedrine were multiplicitous. The court accepted his contention, reasoning:
“The jury was instructed that the elements of attempted manufacture of methamphetamine are: (1) Defendant performed an overt act toward tire commission of the crime of manufacture of a controlled substance; (2) he did so with the intent to commit the crime of manufacture of a controlled substance; and (3) he failed to complete commission of the crime of manufacture of a controlled substance. The jury was further instructed that ‘[a]n overt act necessarily must extend beyond mere preparation made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the complete offense. Mere preparation is insufficient to constitute an overt act.’
“The bag of ephedrine or pseudoephedrine that was found in Stevens’ coat was a powdered substance that had been ground from decongestant tablets. In closing argument, the prosecutor told the jurors that removal of Sudafed pills from their packaging was the overt act that marked the shift from preparation to the process of manufacturing methamphetamine. . . .
“Whether this court agrees with the prosecutor s characterization of the overt act or not, the jury deliberated the question of Stevens’ guilt on that basis. The jury was instructed that, in order to establish the charge of possession of ephedrine or pseudoephedrine, the State had to establish that Stevens knowingly possessed ephedrine or pseudoephedrine with intent to use the product as a precursor to any illegal substance. The jury also was instructed that, in order to establish the charge of attempted manufacture of methamphetamine, the State had to show an overt act toward the manufacture of methamphetamine, done with the intent to manufacture, and failure to complete the manufacture. The prosecutor told the jury that Stevens’ possession of ephedrine or pseudoephedrine in the form of ground-up Sudafed was the evidence of an overt act. In other words, in the circumstances of this case, the State’s proof of possession of ephedrine or pseudoephedrine with intent to use it to manufacture methamphetamine is the same as its proof of the first two elements of attempted manufacture of methamphetamine. Thus, the possession offense does not require proof of an element not necessaiy to prove the attempted manufacturing offense. The attempted manufacture and possession charges are multiplicitous in the circumstances of this case.” 278 Kan. at 447-48.
In the present case, the Court of Appeals limited its analysis to the bare elements, as this court did in Schuette. Using that approach, the jury instruction for the manufacture of methamphetamine charge would require the State to prove that defendant intentionally manufactured methamphetamine. See PIK Crim. 3d 67.21. The jury was instructed that in order to prove possession of drug paraphernalia, the State had to prove that defendant knowingly possessed drug paraphernalia with the intent to use it to manufacture methamphetamine. See PIK Crim. 3d 67.17. Drug paraphernalia was defined for the jury as “all equipment, products and materials of any kind which are used or intended for use in manufacturing, compounding, converting, producing, processing and preparing a controlled substance in violation of the Uniform Controlled Substances Act.” The crime of manufacture of methamphetamine requires proof of the manufacture of methamphetamine, which is not required in proving possession of drug paraphernalia. The crime of possession of drug paraphernalia requires proof of possession of drug paraphernalia, which is not required in proving manufacture of methamphetamine.
Patten urges the court to take proof of a fact into account as the court did in Stevens. The offense of possession of drug paraphernalia requires proof that Patten had equipment, products, and materials intended for use in manufacturing methamphetamine. The prosecutor explained to the jury that its decision on possession of drug paraphernalia could be based on photographs of containers and chemicals that were found in Patten’s trailer. Pictured are containers of Coleman fuel, acetone, muriatic acid, and drain opener, boxes of kitchen matches, a bag of Ice Melt, a box of decongestant caplets, coffee filters, propane containers, an assortment of glass and plastic containers — some with residue in them, glass and plastic containers in the door racks of a refrigerator, and two plastic soda bottles, one with tubing inserted through the cap.
In his testimony explaining how methamphetamine is produced, Detective Frazier identified the above listed items as involved in the process. The offense of manufacturing methamphetamine required proof that defendant intentionally manufactured methamphetamine. The prosecutor informed the jury that more than the possession of household items such as rock salt, acetone, and matches was necessaiy to establish guilt of manufacturing methamphetamine. He stated to the jury that there also must be evidence of “some process going on.” The prosecutor requested that the jury consider Detective Frazier’s testimony regarding the presence of anhydrous ammonia and solvent in the trailer’s refrigerator, which indicated that there was an ongoing production of methamphetamine in the trailer, and to consider the fact that Frazier had found “lithium and other items going to active production of methamphetamine.” Although not mentioned by the prosecutor in closing argument, there was other testimony by Frazier which the jury could have considered in determining that methamphetamine had been produced in the trailer. Frazier had testified that the residue in one of the containers in the trailer appeared to be from the part of the process when the “bindings” were taken off pseudoephedrine pills, the residue in another of the containers appeared to be from the part of the process when lithium, anhydrous ammonia, and ephedrine were combined, the coffee filters smelled of anhydrous ammonia, and methamphetamine was found in the vehicle Patten was driving.
Here, the State’s proof of possession of drug paraphernalia with intent to use it to manufacture methamphetamine also proves in part the manufacture of methamphetamine. The possession offense does not require proof of a fact not necessary, in the circumstances, to prove the manufacturing offense, and all facts proved for possession of drug paraphernalia are identical to some of the facts proved for manufacture of methamphetamine. Using the proof of a fact approach, the possession and manufacture convictions would be multiplicitous in the circumstances of this case.
The approach used by the court in recent multiplicity cases has been determined based on the parties’ arguments. It appears in Schuette that the multiplicity arguments centered on the elements of defendant’s convictions of telephone harassment and criminal threat. See 273 Kan. at 601-02. In Stevens, the parties argued facts. In the present case, the State, in its brief and response to the order to show cause, urged the court to strictly apply the elements analysis, while Patten advocates consideration of the facts that proved the elements.
What most recommends the strict elements analysis is its logical, mechanical ease of application and, hence, certainty. Consideration of the facts proved, in contrast, puts multiplicity on a case-by-case basis. We therefore adopt use of the strict elements analysis to determine multiplicity for several reasons: (1) for faciliiy of application and certainty and (2) to avoid any possibility of returning to the difficulties of the second prong of the Fike test. The judgment of the Court of Appeals affirming the defendant’s convictions and remanding for resentencing is affirmed. The judgment of the district court is affirmed as to the convictions and the case is remanded for resentencing regarding the manufacture of methamphetamine.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Lockett, J.:
The State of Kansas petitioned this court to review
the Court of Appeals’ reversal of defendant Steven Peterman’s conviction of attempted rape for insufficient evidence. The State argues that there was sufficient evidence to support Peterman’s conviction of attempted rape.
On September 7, 2001, after drinking wine coolers and beer, Donna Davis and her sister-in-law went to a club. Davis met Peterman at the bar that night. After Peterman bought Davis and her sister-in-law a drink, Peterman and Davis discussed making money from pornography on the internet. The discussion turned to child pornography. Davis, who was offended by Peterman’s statements that he wanted to take pornographic pictures of little girls, continued the conversation to determine if Peterman was serious. When asked, Davis informed Peterman that she could provide him with young girls. Peterman promised Davis if she provided him with young girls, they would make a lot of money. So Peterman could later contact her, Davis gave Peterman her pager number.
Two weeks later, Peterman paged Davis and asked if Davis had any little girls for him to have sex with and photograph that night. Davis lied to Peterman and told him that she had a 10-year-old girl with her. In response to Peterman’s inquiry about what the child looked like, Davis described her 9-year-old niece who was having á birthday party that day. Peterman wanted to come to Davis’ house, but Davis explained that they could not get together with the child until after the child’s birthday party. Davis told Peterman to call her back in 30 minutes so she could make arrangements for him to get the child.
After her telephone conversation with Peterman, Davis called the police and explained the situation to them. The police officer requested that Davis put the meeting with Peterman off until the next day. Davis informed the officer that Peterman had insisted on doing it that night. The police told Davis they needed some evidence before they could act. The officer advised Davis to give Peterman the address of her location.
Peterman called Davis back about 20 minutes after their first telephone conversation. Davis gave Peterman her brother’s address and directions to his apartment. Peterman asked if the little girl was there. Davis stated that she was. Peterman informed Davis he would be there in about 20 minutes.
After this conversation with Peterman, Davis again called the police and informed them that Peterman was on his way to her brother’s apartment. While Davis was on the phone with the police, Peterman drove up and parked beside Davis’ brother’s apartment. Davis’ niece and some other children were playing outside the apartment when Peterman drove up. Davis’ sister-in-law immedi ately went outside and took the children into the apartment. Davis hung up the phone and joined Peterman in his truck. Davis’ brother then called the police and kept the police informed of the situation.
While they were sitting in the truck, Peterman asked about the little girl. Davis explained to him that the little girl was in the house at her birthday party. Peterman said that he wanted to take the girl then. Davis again explained that she could not interrupt the birthday party because people would ask questions. Davis then convinced Peterman to wait until after the birthday party and promised to bring the litde girl to meet Peterman at a motel.
While Peterman and Davis were seated in the truck discussing their plans to meet, Peterman described in detail what he wanted to do with the litde girl. The plan included drugging the young girl, penetrating her vagina with a vibrator, and finally having sex with the girl. After this discussion, Peterman opened his briefcase and showed Davis various dildos, vibrators, sex creams, and condoms. Peterman then exhibited to Davis photographs of naked Hide girls, explained the pictures to her, and stated he had sex with the girls. While sitting in the truck, Davis held Peterman’s pictures so her brother could observe them through the apartment window. Davis’ brother, who was on the phone with the police, informed them about the pictures.
While Davis was still in Peterman’s truck, two poHce cars approached; one parked in front of Peterman’s truck and the second parked behind Peterman’s truck. When the pohce arrived, Peter-man put his briefcase under a jacket in the backseat. Davis informed the pohce that there were pictures in the briefcase.
The pohce told Peterman to get out of the truck and then advised him of his Miranda rights. Peterman told the officers they could search his truck but that they could not search the black briefcase because the briefcase contained items “that could get [him] in trouble.” After admitting to the officers that he had obtained photographs of the young children from the internet, Peterman consented to a search of his briefcase.
The police then searched the truck and the briefcase. Inside Peterman’s truck, officers found a paper sack containing an empty case for a dildo, a receipt showing that a dildo had been purchased that afternoon, a flyer for kids night at Skateland Center, and a black briefcase. The briefcase contained pornographic pictures of children, a pair of black women’s panties, vibrators, dildos, a bottle containing “Climax Personal Lubricant,” a bottle containing an unidentified liquid, bottles of massage oil, a container of ginseng powder, two gold balls, a set of metal clips with a chain, condoms, skin care lotion, “China Shrink Cream,” “Hard-on Cream,” a jar of spermicidal lubricant, and a bottle of liquid “Spanish Fly.” Peter-man stated to the officers that he had planned to take photographs of himself having sex with the child and would have used the items in his briefcase on the child.
The State charged Peterman with multiple counts, including attempted rape and sohcitation. Several of the charges were dismissed at the preliminary hearing. Peterman was ultimately tried for and convicted by a jury of attempted rape, sohcitation to commit rape, and sohcitation to commit sexual exploitation of a child. The district judge sentenced Peterman to a controlling sentence of 144 months in prison, ordering the aggravated sentences for all three convictions to run consecutively. Peterman appealed his convictions to the Court of Appeals, claiming insufficient evidence and a multiplicity of charges and convictions and asserting that the district court erred in refusing to suppress evidence.
A majority of the Court of Appeals affirmed Peterman’s convictions for sohcitation to commit rape and sohcitation to commit sexual exploitation and reversed his conviction for attempted rape. State v. Peterman, No. 90,120, unpublished opinion filed August 20, 2004. Both the State and Peterman filed petitions for review. We granted the State’s petition and denied Peterman’s petition.
The State claims that the majority of the Court of Appeals erred when finding there was insufficient evidence to support Peterman’s conviction for attempted rape. Peterman had asserted that because he was never in close physical proximity with the purported child victim, there was no overt act sufficient for a conviction for attempted rape. Peterman argued that his actions were mere preparation because the final plans had not been completed and the intended victim was fictional. When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Zimmerman, 251 Kan. 54, 58, 833 P.2d 925 (1992).
Attempt is statutorily defined as “any overt act toward the perpetration of a crime done by a-person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301. K.S.A. 2004 Supp. 21-3502(a)(2) defines rape as “sexual intercourse with a child who is under 14 years of age.” Sexual intercourse is defined as “any penetration of the female sex organ by a finger, the male sex organ or any object.” K.S.A. 21-3501(1). Therefore, to convict Peterman of attempted rape, the State was required to prove that Peterman (1) performed an overt act toward penetrating the sexual organ of a female child under the age of 14; (2) performed that act with the intent to penetrate the sexual organ of a female, child .under the age of 14; and (3) failed to penetrate the sexual organ of a female child under the age of 14. See P.I.K. Crim. 3d 55.01. The second two elements are not disputed by Peterman and require little discussion.
We have previously stated that the intent required for an attempt to commit a crime must be specific to the underlying crime. State v. Robinson, 256 Kan. 133, 137, 883 P.2d 764 (1994). Here, there is ample evidence of Peterman’s intent to penetrate a child’s vagina. Peterman explained to police that he was going to use the vibrators and dildos in his briefcase on the child. Peterman told Davis in detail how, prior to having sex with the little girl, he would initially penetrate the child’s vagina with the smallest vibrator that he had purchased shortly before he met with Davis. Peterman argues that he could not actually penetrate the child because in this case, the child was fictional, i.e., did not actually exist, and the police arrested him while he was merely discussing the matter with Davis.
Did Peterman commit an overt act toward penetrating a female child’s sex organ? Kansas law does not provide definitive rules as to what constitutes an overt act for attempting crime. The overt act necessarily must extend beyond mere preparations made by the accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. State v. Hedges, 269 Kan. 895, 905, 8 P.3d 1259 (2000).
The intent to commit the crime of rape rather than the possibility of success determines whether the defendant’s act constitutes the crime of attempt. State v. Martens, 274 Kan. 459, 466, 54 P.3d 960 (2002). We have previously determined that the crime of attempted rape does not require evidence of attempted penetration. State v. Gonzales, 245 Kan. 691, 698, 783 P.2d 1239 (1989). Although the overt act does not have to be the last proximate act in the consummation of the crime, it must be either the first or some subsequent step in a direct movement toward the commission of the crime after the preparations are made. Hedges, 269 Kan. at 905. Mere preparations include “devising or arranging the means or measures necessary” for committing the offense. State v. Garner, 237 Kan. 227, 239, 699 P.2d 468 (1985). It may be enough for the defendant to arrive at the scene where the crime is to occur. 237 Kan. at 238-40 (holding that the defendant committed an overt act toward the crime of attempted theft when he went to the owner’s property to prepare the cattle for shipment the next day).
Each case is dependant on its particular facts and the reasonable inferences the jury may draw from those facts. Garner, 237 Kan. at 238. It is the juiy’s function to determine whether an overt act occurred. State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988). In reaching its conclusion, the majority of the Court of Appeals did not rely on Peterman’s close physical proximity argument. Rather, the majority focused on the incomplete arrangements for completing the act, stating: “Where arrangement of the means or measures necessary to commit such acts are clearly incomplete, we cannot reasonably conclude that Peterman had taken the first step toward intercourse.” Peterman, slip op. at 10. The majority noted that the line between preparation and overt act may be indistinct and determined that where there is not yet a victim or a place or time established for the sexual intercourse, that line has not been crossed. Slip op. at 10.
The majority of the Court of Appeals accepted Peterman’s argument that there could be no crime because there was no actual victim; here the victim was fictional. We note that this conclusion is contrary to K.S.A. 21-3301(b), which provides: “It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.”
The concurrence and dissent observed:
“The majority adopts Peterman’s arguments that ‘he had no place or time established for the crime; he had never spoken to, seen or met the victim; he did not restrain the victim; he did not disrobe the victim; he did not disrobe himself in preparation for the victim; he did not touch or fondle the victim; and he certainly did not attempt to penetrate the victim.’ In doing so, they find the preparations incomplete and determine that ‘where there is not yet a victim nor a place and time established for sexual intercourse’ the juiy could not permissibly find an overt act. They also suggest, citing K.S.A. 21-3303(c), that Peterman would have had an opportunity to abandon his plan and renounce his intention prior to completing the act.” Peterman, slip op. at 4-5 (District Judge David L. Stutzman, assigned, concurrence and dissent).
The concurrence and dissent then points out:
“In Peterman’s view, however, there was a victim. The fictional nature of that victim, as the majority holds, is immaterial, as that is an argument based on impossibility. Based on the evidence, Peterman had effectively determined that the time for the crime was to be as soon as possible. Davis’ testimony was clear that Peterman came to the house not just to ‘observe the child’ but to pick up the child and that he asked Davis more than once if he could leave with the child. When Davis first called the police, the officer asked whether she could put Peterman off until the following day to give the police time to prepare; she told tire officer tiiat Peterman was insisting on that day. The place for die crime apparently was to be a motel, since that is where Peterman told Davis he intended to go. There was no evidence diat Peterman showed any indecision about where he would accomplish the plan he had fully formulated, and diere was no suggestion tiiat, ‘but for’ a possible location, his plans world be complete.
“The fact that Peterman still could have changed his mind and abandoned all purpose to commit die crime does not affect the overt act analysis, since that could be said of many or most defendants charged with attempt crimes, whose overt acts were first or subsequent, but not final, steps toward completing their crimes. K.S.A. 21-3303(c), the voluntary renunciation defense to criminal solicitation, is not instructive in this context.” Slip op. at 5-6 (concurrence and dissent).
The concurrence and dissent concluded:
“The jury in this case was clearly aware that the required elements of the attempted rape charge included an overt act, as reflected by its question asking for a ‘better definition of an “overt” act.’ The trial judge responded appropriately and the jury resumed deliberations, eventually convicting Peterman on that count. Their decision should be respected. The majority writes that affirming this conviction would show we are being ‘influenced by our sensibilities rather tiran the letter of tire law.’ I respectfully disagree. Affirming this conviction would let the members of the juiy, who saw the witnesses and defendant and heard the evidence, decide the distinctly factual question of whether Peterman’s preparations were complete and he had begun to act on his clearly stated intent.
“I would affirm the conviction for attempted rape.” Slip op. at 6 (concurrence and dissent).
In State v. Jones, 271 Kan. 201, 21 P.3d 569 (2001), this court addressed whether a defendant could be found guilty of attempted indecent liberties with a fictional 14-year-old girl created by a Wichita police officer in response to the defendant’s internet personal advertisement. Noting that K.S.A. 21-3301(b) codified the existing law that factual impossibility to commit a crime is not a defense and ehminated the doctrine of legal impossibility as a defense, the Jones court upheld the defendant’s conviction. 271 Kan. at 203, 205.
The majority of the Court of Appeals attempts to distinguish Jones because there a female police officer posed as a victim, albeit an imposter, thereby associating an actual person with the fictional identity of the victim. Peterman, slip op. at 7-8. However, that distinguishing fact does not change K.S.A. 21-3301(b), which eliminates both factual and legal impossibility as a defense. Moreover, Jones cannot be factually distinguished in that regard. Like the defendant in Jones, there is evidence that Peterman could have associated an actual child with the fictional child Davis described to him. Though not dispositive of this case, Davis testified that she described her niece to Peterman. Davis’ niece was outside when Peterman drove by Davis’ brother’s apartment. Davis asked Peter-man if he had seen the girl before she went inside, and he said that he had seen her, but did not get a “good look at her.” Thus, Jones precludes Peterman’s argument that he could not have committed attempted rape against a fictional victim. The Court of Appeals’ conclusion to the contrary is in error.
Peterman’s argument that he did not commit an overt act because he was not in close physical proximity with a victim relies on Kansas cases decided prior to Jones and cases from other jurisdictions. Although Peterman did not come in close physical proximity with a child, his intent was to have sexual intercourse with a child. Peterman’s act of driving to meet Davis to pick up a child for the purpose of sexual intercourse constituted an overt act beyond mere preparations. Peterman went as far as he could toward completing his criminal intentions prior to discovering that the child victim was fictional.
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the district court is affirmed.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Lockett, J.,
Retired: Lana C. Jackson appeals her conviction for felony murder based on the underlying felony of selling cocaine. Jackson asserts: (1) The murder did not occur during the course of the drug transaction; (2) an extraordinary, intervening event broke the causal connection between the drug transaction and the shooting that caused the death; and (3) the trial court failed to give Jackson’s requested instruction regarding application of the felony-murder rule.
FACTS
During the morning hours of December 31, 2001, Lana Jackson received a call from Russell Cope advising her that an individual wanted to purchase 4 1/2 ounces of powder cocaine. Jackson estimated that the purchase price of the cocaine was approximately $3,500. Jackson soon learned that the cocaine was for Bennie Zeigler, whom she had known for approximately 1 year and for whom she had arranged other drug transactions. Zeigler had always paid, so Jackson was comfortable dealing with Zeigler.
Jackson, who did not personally have drugs, contacted Erick Donaldson to see if Donaldson could supply the cocaine. Donaldson did not have 4 1/2 ounces of cocaine, so he contacted his friend Vernon Harris, who stated that he could supply the drugs. To complete the transaction, Jackson arranged to meet Cope and Zeigler at a car wash. After picking up Donaldson and Harris, Jackson drove to the car wash. Neither Cope nor Zeigler was there. Jackson tiren arranged to meet Cope and Zeigler at Joyland Amusement Park. When Jackson talked to Zeigler in the parldng lot at Joyland, they decided not to complete the transaction there because it was too open. Jackson then suggested that they go to Patricia Shelinbarger’s house to complete the transaction.
Cope did not go with Jackson and Zeigler to Shelinbarger’s house. When they arrived at Shelinbarger’s house, Jackson, Harris, and Zeigler went to Shelinbarger’s door. Donaldson remained in the backseat of Jackson’s car. Shelinbarger’s daughter told Jackson that Jackson could not come in the house. Unable to complete the transaction at Shelinbarger’s house, the trio walked towards the cars, discussing what to do next.
Jackson’s car was parked in the street, with the passenger’s side facing Shelinbarger’s house. Zeigler had parked his car approximately 10-15 feet behind Jackson’s car, facing the same direction. Jackson stopped on the curb near the rear passenger’s side of her car. Harris and Zeigler continued around to the driver’s side of Zeigler’s car. After Harris told Zeigler to give him everything, the two began hollering at each other. A fight broke out between Harris and Zeigler. Harris then punched Zeigler and sprayed him in the face with pepper spray. Ziegler pulled out a gun and hit Harris on the head with the gun. Harris, who also had a gun, shot Zeigler in the top of the head. Zeigler died from a single gunshot to the top of his head. Zeigler had $330 in his wallet. There were no drugs found on or around his body.
Immediately after Harris shot Zeigler, Jackson ran around to the driver’s side door of her car. Harris pushed Jackson into the car, then crawled over her to the passenger’s seat. Jackson drove away, then took Donaldson and Harris back to Harris’ car.
Jackson was arrested approximately 2 weeks later. Jackson waived her Miranda rights and agreed to talk to Detective Chisholm. Jackson told Detective Chisholm that she, Zeigler, and Harris had discussed going to Zeigler’s mother’s house, which was around the comer, to complete the transaction after they were denied entrance to Shelinbarger’s house. Jackson informed Detective Chisholm that Donaldson and Harris divided the money Harris had taken from Zeigler.
The State charged Jackson with felony murder based on the death during the underlying felony of selling cocaine or, in the alternative, felony murder based on the underlying felony of aggravated robbery. When the jury could not reach a unanimous verdict, Jackson’s first trial ended in a mistrial. After hearing the evidence in her second trial, that jury convicted Jackson of felony murder based on the underlying felony of selling cocaine. The district judge sentenced Jackson to life in prison without the possi bility of parole for 20 years. Jackson appeals her conviction directly to this court pursuant to K.S.A. 22-3601(b)(1). Jackson asserts (1) the murder did not occur during the course of a drug transaction, (2) an extraordinary, intervening event broke the connection between the drug transaction and the shooting that caused the death, and (3) the trial court failed to give her requested felony murder instruction.
ANALYSIS
I. Did the murder occur during the course of the drug transaction?
Jackson claims that Zeigler’s murder was not part of the res gestae of the drug transaction because she had abandoned the drug sale prior to Zeigler’s murder. Jackson argues that there was a break in the chain of events when she, Harris, and Zeigler were denied access to Shelinbarger’s house.
An appellate court reviews this issue like any other challenge to the sufficiency of the evidence. All of the evidence is reviewed in a light most favorable to the State. If that review supports the rational factfinder’s conclusion that the murder occurred during the res gestae of the underlying crime, then this court must uphold the defendant’s conviction for felony murder. Generally, whether the underlying felony was abandoned or completed before the murder is a question of fact for the jury to decide. State v. Beach, 275 Kan. 603, 610-11, 67 P.3d 121 (2003). An appellate court does not determine whether the evidence is incompatible with any reasonable hypothesis except guilt. That function remains with the jury and the trial court. Rather, an appellate court is “limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt.” State v. Boone, 277 Kan. 208, 217, 83 P.3d 195 (2004). Regardless of whether the evidence supports another theory of the events, an appellate court’s function is to determine whether there is a basis in the evidence to support the jury’s guilty verdict. Boone, 277 Kan. at 218.
K.S.A. 21-3401(b) defines felony murder as “the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” Selling or offering to sell cocaine is an inherently dangerous felony. See K.S.A. 2004 Supp. 21-3436(a)(14); K.S.A. 2004 Supp. 65-4101(p)(4); K.S.A. 2004 Supp. 65-4161. Anyone who “intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime” is criminally hable for the crime committed by another person, including any crimes that are reasonably foreseeable as a probable consequence of committing or attempting to commit the intended crime. K.S.A. 21-3205(1) and (2).
The felony-murder rule applies when the victim’s death occurs within the res gestae of the underlying felony. Beach, 275 Kan. at 610. Res gestae has been defined as those acts done before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, apart of the occurrence. State v. Peterson, 236 Kan. 821, 829, 696 P.2d 387 (1985).
Jackson argues that the drug transaction ended when she, Harris, and Zeigler were denied access to Shelinbarger’s house. This argument overlooks some evidence in the record. Although Jackson did not shoot Zeigler, she arranged the drug transaction that led to Zeigler’s death. To complete the drug transaction, Jackson was required to arrange three different meeting places. When the first meeting location fell through, Jackson communicated with Zeigler and arranged a second location for the transaction. When the second location was determined to be unacceptable, Jackson again communicated with Zeigler to coordinate the sale at a third location, Shelinbarger’s house. Jackson explained to Detective Chisholm that when Shelinbarger’s house was unacceptable, they were in the process of determining how to complete the sale as they were walking away from Shelinbarger’s house. Jackson stated to Detective Chisholm that she believed they were going to find a place to finalize the drug transaction. One possibility was going to Zeigler’s mother’s house, which was located just around the corner. These statements indicate Jackson’s belief that the drug transaction had not been abandoned or terminated when Harris shot Zeigler.
Jackson and Zeigler had attempted to complete the drug transaction at three different places. Based on the defendant’s state ments, it was reasonable for the jury to infer that the individuals would arrange another place to complete the drug transaction. Under such circumstances, the drug transaction had not been completed but was still in process when Harris shot Zeigler. When this evidence is viewed in a light most favorable to the State, it supports the jury’s conclusion that Zeigler’s murder occurred during the drug transaction.
II. Did an extraordinary intervening event bréale the causal connection between the drug transaction and the shooting that caused Zeigler’s death?
Next, Jackson argues that Harris’ act of shooting Zeigler was an extraordinary, intervening event that broke the causal connection between the drug transaction and the murder. Jackson asserts that she did not know that Harris had a gun or that Harris would shoot Zeigler to obtain Zeigler’s money. She claims that because she had no control over Harris’ actions, she cannot be found criminally liable for Harris’ actions.
The standard of review for determining whether there is a causal connection between the murder and the underlying felony requires this court to examine the sufficiency of the evidence to support the felony-murder conviction. This standard requires an appellate court to review the evidence in a light most favorable to the State. Beach, 275 Kan. at 611.
The facts in this case are similar to the facts in Beach. Rebecca Beach was convicted of felony murder based on the underlying felony of selling methamphetamine. The victim, Grant, used Beach to coordinate his methamphetamine purchases. When Grant wanted to purchase methamphetamine, he called Beach, who arranged a meeting between Grant and a supplier. Grant would then pick up Beach, and they would drive to a location that Beach had arranged for the transaction. On the day of Grant’s murder, Beach could not contact her normal suppliers, but her companion, Arevalo, told her that he could get the drugs. Arevalo contacted Jiminez, then informed Beach that Jiminez could supply the drugs. Beach drove Arevalo and Jiminez to the location she had arranged for the transaction. Arevalo and Jiminez waited while Beach left to get Grant and return to complete the drug transaction. After Grant gave Beach the money for the drugs, Beach went into the house, allegedly to exchange the money for the drugs. As Beach entered the house, Arevalo shot and killed Grant. Beach then left the scene with Arevalo and Jiminez. At trial, the jury was instructed to convict Beach of felony murder if it found Grant was killed “while in the commission of, or attempt to commit, or in the flight from committing” sale of methamphetamine or aggravated robbery. 275 Kan. at 609.
On appeal, Beach claimed that she did not know Arevalo and Jiminez were planning to kill Grant; therefore, Arevalo’s act of shooting Grant was an extraordinary intervening act which broke the causal connection between the drug transaction and Grant’s murder. 275 Kan. at 612. The Beach court first noted that the felony-murder rule requires a direct causal connection between the commission of the felony and the homicide. However, unlike the general rules of proximate cause used in civil actions, a defendant will be held Hable for a death that occurs during the commission of a felony unless there is an extraordinary intervening event that supercedes the defendant’s act and becomes the sole legal cause of death. 275 Kan. at 612. In determining whether there was a causal relationship, the Beach court observed that the “ ‘[tjime, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony.’ ” 275 Kan. at 613 (quoting State v. Hearron, 228 Kan. 693, 696, 619 P.2d 1157 [1980]).
After considering the time factor between the sale of methamphetamine and Grant’s murder, the Beach court concluded that the two events took place at the same time because Beach was on her way to exchange Grant’s money for the drugs. Therefore, the time factor supported Beach’s conviction. The Beach court noted that Beach had arranged the location for the drug transaction and led Grant to that location. The Beach court then considered the distance between the shooting and the drug transaction and determined that it supported Beach’s conviction, as well.
In reaching this conclusion, the Beach court first acknowledged that Beach had a “visceral argument that Arevalo’s appearance with guns blazing constitute^] an ‘extraordinary intervening event.’ ” 275 Kan. at 613. Nevertheless, the Beach court rejected that argument by noting Beach’s participation in the drug transaction. Beach had coordinated the plan to sell drugs and had informed Arevalo that Grant would have a large amount of cash. Under these circumstances, it was foreseeable that a person with a lot of cash who was intent on engaging in illegal drug activity would be a target for violence. The Beach court then concluded that Arevalo’s act was not an extraordinary, intervening act. 275 Kan. at 613-14.
The same analysis applies to the facts in this case. The time factor supports Jackson’s conviction. Harris shot Zeigler while they were in the process of completing the drug transaction. Jackson told Detective Chisholm that Harris and Zeigler were attempting to decide what to do next and had considered going to Zeigler’s mother’s house, which was just around the comer. Although it was going to take less than a minute to complete the transaction, Jackson did not want to conduct business in the open. She and Zeigler had attempted to complete the transaction in three different locations at that point. Under these facts, the jury could have reasonably inferred that they would again attempt to complete the transaction in another location. Even though they were not in the process of exchanging drugs and money when the shooting occurred, the evidence supports the inference that the drug transaction was ongoing; therefore, the shooting and the dmg transaction were occurring simultaneously.
In addition, the distance factor supports Jackson’s conviction for felony murder. After being denied access to Shelinbarger’s house, Jackson, Zeigler, and Harris walked a short distance between Shelinbarger’s front door and the cars on the street. Shelinbarger described Jackson’s, Harris’, and Zeigler’s demeanors as friendly during the walk back to the cars. Detective Chisholm testified that Jackson stated they were talking about what to do next, Jackson testified that Harris, who had the dmgs, and Zeigler were talking to each other as they returned to the cars. The conversation regarding where to go next to complete the drug transaction occurred just a few feet from the shooting. Thus, the evidence supports the inference that the shooting and the drug sale took place in the same location.
Jackson s argument that she did not know Harris had a gun and intended to shoot Zeigler is analogous to Beach’s argument that Arevalo’s act was an extraordinary intervening act. The Beach court rejected that argument. We note that Harris learned about Zeigler’s drug transaction from Jackson. Jackson had made it clear to Donaldson and Harris that Zeigler wanted to buy 4 1/2 ounces of cocaine, valued at approximately $3,500. Having sold drugs to Zeigler on several previous occasions, Jackson knew that Zeigler had the money to purchase the drugs. Jackson also acknowledged that selling drugs is a dangerous business and that most people carry guns to protect themselves during drug transactions. Based on this evidence, the jury could infer that Zeigler’s murder had a causal connection with the drug transaction arranged and facilitated by Jackson. It was therefore foreseeable that Zeigler could be a target for violence. See Beach, 275 Kan. at 614, 625-26.
After reviewing the evidence in the light most favorable to the State, we find there is sufficient evidence to support the jury’s conclusion that Zeigler’s death was not the result of an extraordinary intervening act by Harris. Rather, the time, distance, and causal relationship between Zeigler’s death and the drug transaction support the jury’s conclusion that Harris’s act of shooting Zeigler was not an extraordinary intervening act.
III. Did the trial court err in refusing to give Jackson’s requested instruction regarding application of the felony-murder rule?
Finally, Jackson argues that the trial court failed to give this requested jury instruction regarding the causal connection between the drug transaction and Zeigler’s death:
“Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing was part of the felony, and, therefore, subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide.”
Jackson requested the instruction at trial. When the trial court refuses to give a requested instruction, an appellate court must view the evidence in a light most favorable to the party requesting the instruction. A defendant is entitled to an instruction on his or her theory of the case, even if the evidence of the theory is slight and supported only by the defendant’s own testimony. However, an appellate court cannot consider the requested instruction in isolation. Rather, the court must consider all of the instructions together as a whole. If the instructions as a whole properly and fairly state the law as applied to the facts of the case, and the jury could not reasonably be mislead by them, the instructions are not reversible error even if they are in some way erroneous. Beach, 275 Kan. at 624-25.
Jackson argues that her requested instruction properly recites the law. She asserts that without the instruction, the jury could not consider whether she had withdrawn from the drug transaction at the time of the shooting. We note that in Beach, the defendant requested a jury instruction regarding the foreseeability of a murder during a drug transaction. The Beach court held that the failure to give that instruction was not erroneous because PIK Crim. 3d 56.02 provides the elements for felony murder and properly and fairly states the law regarding causation for a felony murder. 275 Kan. at 625.
In reaching this conclusion, the Beach court relied on State v. LaMae, 268 Kan. 544, 998 P.2d 106 (2000):
“ ‘PIK Crim. 3d 56.02 sufficiently incorporates the causation required under the law. The instructions require not only that the death occur during the commission of the felony but that the killing actually be perpetrated by the defendant or another in the commission of the felony. An extraordinary intervening cause would negate this latter element. Thus, if the jury found that the defendant or another was responsible for the death in the commission of the felony, the jury by definition found that no extraordinary intervening cause existed that was the sole cause of the death.’ ” Beach, 275 Kan. at 625 (quoting LaMae, 268 Kan. at 555).
The same analysis applies in this case. The court gave the following instruction for felony murder from PIK Crim. 3d 56.02:
“The defendant is charged in Count 1 with tire crime of murder in the first degree. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant or another killed Bennie L. Zeigler;
“2. That such killing was done while in the commission of or attempting to commit sale of cocaine, and
“3. That this act occurred on or about the 31st day of December, 2001, in Sedgwick County, Kansas.” (Emphasis added.)
Immediately preceding the felony-murder instruction, the trial court instructed the jury regarding how to determine guilt or innocence, stating:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove she is not guilty. You must presume that she is not guilty until you are convinced from the evidence that she is guilty.
“The test you must use in determining whether the defendant is guilty or not is this: If you have a reasonable doubt as to the truth of any claims required to be proved by the State, you must find tire defendant not guilty. If you have no reasonable doubt as to the truth of any of tire claims required to be proved by the State, you should find the defendant guilty.”
PIK Crim. 3d 56.02 requires the jury to find that the killing was done while the felony was being committed or attempted. If the juiy had found that the drug transaction was over or that Jackson had abandoned the drug transaction when Harris shot Zeigler, that claim in the felony-murder instruction would not have been satisfied, and the instructions would have required the jury to acquit Jackson. However, the jury’s verdict, finding Jackson guilty of felony murder based on the underlying felony of selling cocaine and not guilty of felony murder based on aggravated robbeiy, indicates that the juiy had determined that Jackson had not withdrawn from the drug transaction.
In addition, Jackson’s trial counsel stated the substance of the instruction in his closing arguments to the jury, stating:
“[T]here’s a case, and it says, time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of . . . the sale of cocaine. And I would tell you, submit to you, that if those guys are going out to rob him and they know it and she doesn’t, the sale of cocaine didn’t lead to [Bennie Zeigler’s] death. The actions of Erick and Vernon led to Bennie Zeigler’s death.”
Although the closing statements from Jackson’s trial counsel do not have the same effect as jury instructions, the instructions, when considered as a whole, fairly and properly stated the law as applied to the facts without confusing the juiy. The trial court did not err when it denied Jackson s request for the additional instruction.
Affirmed.
Lockett, J., Retired, assigned.
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The opinion was delivered by
Luckert, J.:
This is an interlocutory appeal in an eminent domain proceeding. The primary issue on appeal is whether the district court acquired subject matter jurisdiction over Stranger Valley Land Company, L.L.C.’s (Stranger Valley) appeal from the appraisers’ award when it timely filed the notice of appeal but did not comply with the provisions of K.S.A. 2004 Supp. 26-508 requiring the payment of a docket fee and the docketing of the appeal as a new civil action. We hold that the language of K.S.A. 2004 Supp. 26-508, specifying that a party may appeal within 30 days of the appraisers’ award “by filing a written notice of appeal with the clerk of the district court and paying the docket fee of a new court action,” makes the timely filing of the notice of appeal and payment of the docket fee jurisdictional requirements. The manner in which the case is docketed, however, is not jurisdictional.
The underlying facts are not disputed. On January 16, 2004, the Kansas Department of Transportation (KDOT) filed an eminent domain proceeding in Russell County District Court seeking to acquire real property owned by Stranger Valley for highway purposes. The district court approved the petition and appointed three appraisers. On April 16, 2004, the appraisers filed their report fixing the amount of compensation due Stranger Valley. KDOT deposited the stated compensation with the clerk of the district court.
On May 14, 2004, Stranger Valley filed a notice of appeal with the district court. The notice of appeal carried the same caption and case number as the original eminent domain action filed by KDOT. Stranger Valley did not pay a docket fee when it filed the notice of appeal.
KDOT filed a motion to strike Stranger Valley s notice of appeal arguing that Stranger Valley failed to perfect its appeal in accordance with K.S.A. 2004 Supp. 26-508 because it had not docketed the appeal as a new civil action or paid the required docket fee. KDOT also argued that the district court lacked jurisdiction to extend the time for properly perfecting the appeal.
After a hearing, the district court ruled in favor of KDOT. Stranger Valley filed a motion asking the district court to reconsider its decision. The district court granted the motion and found the payment of the docket fee was not jurisdictional. The district court also certified its ruling for interlocutory appeal pursuant to K.S.A. 60-2102(b); see K.S.A. 2004 Supp. 60-2102(c).
The case was transferred to this court on this court’s own motion pursuant to K.S.A. 20-3018(c), and this court granted KDOT’s application for interlocutory appeal.
Analysis
Procedures for eminent domain proceedings, K.S.A. 26-501 et seq., are controlled by statute. See K.S.A. 26-501(a) (“The procedure for exercising eminent domain as set forth in K.S.A. 26-501 to 26-516, inclusive, shall be followed in all proceedings.”) K.S.A. 2004 Supp. 26-508 provides for an appeal from the appraisers’ award and specifies the procedures to be followed.
As such, K.S.A. 2004 Supp. 26-508 governs the district court’s jurisdiction of such an appeal because Kansas courts have “only such appellate jurisdiction as is conferred by statute, pursuant to Article 3, Section 3, of the Kansas Constitution, and in the absence of compliance with the statutory rules, [a] court has the duty to dismiss the appeal.” Brown v. Brown, 218 Kan. 34, 38, 542 P.2d 332 (1975). However, “[statutory requirements for an appeal are not always jurisdictional.” City of Wichita v. 200 South Broadway, 253 Kan. 434, 437, 855 P.2d 956 (1993). Therefore, we must interpret K.S.A. 2004 Supp. 26-508 to determine what is required to perfect an appeal, i.e., which procedural steps are jurisdictional and which are not.
Interpretation of a statutory provision is a question of law subject to unlimited review. State, ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, Syl. ¶ 2, 112 P.3d 131 (2005); see City of Wichita, 253 Kan. at 436. Our standards for statutoiy interpretation are well established:
“ ‘The fundamental rule of statutoiy construction to which all other rules are subordinate is that the intent of the legislature governs if the intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutoiy scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.’ [Citation omitted.]” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005).
In this case, KDOT argues that K.S.A. 2004 Supp. 26-508 is plain and unambiguous in stating that the requirements to perfect an appeal are: (1) the filing of a notice of appeal within 30 days of the appraisers’ award; (2) the payment of the docket fee for a new civil action; and (3) the docketing of the case as a new civil action. Stranger Valley and the amicus curiae argue that the only requirement is that the notice of appeal be filed within 30 days.
K.S.A. 2004 Supp. 26-508 provides:
“If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, such party, within 30 days after the filing of the appraisers’ report, may appeal from the award by filing a written notice of appeal with the clerk of the district court and paying the docket fee of a new court action. In the event the parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three days after the date of the perfection thereof. An appeal by the plaintiff or any defendant shall bring the issue of damages to all interests in the tract before the court for trial de novo. The appeal shall be docketed as a new civil action and tried as any other civil action. The only issue to be determined therein shall be the compensation required by K.S.A. 26-513, and amendments thereto.” (Emphasis added.)
The statute was amended in 2003 to add the phrase “and paying the docket fee of a new court action” and to add the word “new” to the phrase “shall be docketed as a new civil action.” L. 2003, ch. 106, sec. 2. The question of whether these new requirements are jurisdictional has not been previously decided.
However, we do have guidance from an earlier decision, City of Wichita, 253 Kan. 434, which concerned whether the district court acquired jurisdiction of an appeal from the appraisers’ award where the notice of appeal was timely filed and served on the condemner but copies of the notice of appeal were not served on all other interested parties as required by K.S.A. 26-508.
The version of K.S.A. 26-508 then in effect provided:
“ ‘If the plaintiff, or any defendant, is dissatisfied with the award of the appraiser, he may, within thirty (30) days after the filing of the appraisers’ report, appeal from the award by filing a written notice of appeal with the clerk of the district court. In the event any parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three (3) days after the date of the perfection thereof’ ” (Emphasis added.) 253 Kan. at 435.
The landowner argued that the first sentence of K.S.A. 26-508 set forth what a party must do to perfect an appeal, while the second sentence of the statute formed a requirement to be met only after an appeal has been perfected; therefore, the requirement of mailing copies of the notice of appeal was not jurisdictional. This court agreed, holding: “[P]ursuant to the unambiguous language of K.S.A. 26-508, mailing copies of the notice of appeal is not needed to perfect an appeal from the appraisers’ award in an eminent domain case and therefore is not jurisdictional to such an appeal.” 253 Kan. at 437.
Applying the same reasoning to the instant case, the requirement that an appeal from the appraisers’ award be docketed as a new civil action is not necessary to perfect an appeal and therefore is not jurisdictional. The docketing requirement appears in the fourth sentence of the statute and is removed from the first sentence. Furthermore, that requirement follows the second sentence which begins with the phrase “[i]n the event the parties shall perfect an appeal,” and thereby indicates all remaining provisions relate to procedures after an appeal is perfected. By contrast, the requirement that an appealing party pay the docketing fee appears in the first sentence with the requirement that a notice of appeal be filed within 30 days, a requirement which is necessary to perfect an appeal. See Brown, 218 Kan. at 37-38. The plain and unambiguous language of the first sentence of the statute requires two things to perfect an appeal: The filing of a notice of appeal within 30 days and the payment of the docket fee. Furthermore, these requirements precede the phrase “[i]n the event the parties shall perfect an appeal,” which would indicate any previously stated requirement is jurisdictional.
Despite this clear language, Stranger Valley seeks a determination that appellate jurisdiction is never dependent upon the payment of docket fees; rather, such payment is a nonjurisdictional technicality. In support of its arguments, Stranger Valley discusses two cases: Legg v. Topeka Halfway House, Inc., 7 Kan. App. 2d 669, 646 P.2d 1155, rev. denied 231 Kan. 800 (1982), and Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 (1976), both of which held that subject matter jurisdiction was not defeated by technical noncompliance with procedures for bringing an appeal. However, the statutes at issue in those cases are distinguishable from K.S.A. 2004 Supp. 26-508.
In Legg, a complainant sued his employer claiming race discrimination. The examiner for the Kansas Commission on Civil Rights (KCCR) found that the employer had discriminated and awarded lost wages and damages to the complainant. The employer filed a timely notice of appeal with the district court but improperly served the notice of appeal on the KCCR staff attorney who had prosecuted the complaint rather than on the complainant at his last known address as required by K.S.A. 44-1011 (Ensley 1981).
The Legg court concluded that “because the notice of appeal was timely filed and complainant has at no time shown prejudice by virtue of service on the KCCR staff attorney, we hold this technical noncompliance with K.S.A. 44-1011, did not defeat subject matter jurisdiction over the appeal.” 7 Kan. App. 2d at 671. In essence, the court ruled that the only requirement to perfect an appeal under K.S.A. 44-1011 was the timely filing of the notice of appeal. The statute provided that judicial review could be obtained “by filing with the clerk of said court within thirty (30) days from the date of service of the order, a written appeal praying that such order be modified or set aside.” The next sentence required service on all parties. Thus, service was a technical adjunct to the filing of the notice of appeal. In contrast, K.S.A. 2004 Supp. 26-508 specifies that the appeal may be taken “by fifing a written notice of appeal with the clerk of the district court and paying the docket fee of a new court action.” Thus, it imposes two requirements for perfecting an appeal: (1) the timely fifing of the notice and (2) the payment of the docket fee.
The distinction in statutory language is further illustrated by comparing K.S.A. 2004 Supp. 26-508 to the statutes at issue in the cases relied upon by the Court of Appeals in Legg when it drew a distinction between statutory appeal requirements which are jurisdictional and those which are not. Summarizing those cases, the Court of Appeals stated:
“Under Kansas practice, although timely filing of notice of appeal is jurisdictional (Everett v. Blue Cross-Blue Shield Ass’n, 225 Kan. 63, 587 P.2d 873 [1978]), failure to strictly comply with other prerequisites for appeal, such as timely payment of the docket fee (Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 [1976]), timely designation of the record (Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 581 P.2d 372 [1978]), certification by a municipal court of the complaint, warrant and appearance bond to the district court on appeal (City of Garnett v. Zwiener, 229 Kan. 507, 625 P.2d 491 [1981]), and timely filing of an appeal bond (In re Estate of Duncan, 7 Kan. App. 2d 196, 638 P.2d 992, rev. denied [231 Kan. 800 (1982)], are not jurisdictional where no prejudice results.” Legg, 7 Kan. App. 2d at 670.
Each of the statutes at issue in the cases which the Court of Appeals cited as involving nonjurisdictional requirements — Kleibrink, Zwiener, In re Duncan, and Avco — are distinguishable. In Kleibrink, the concern was the failure to timely designate a record. The court noted that a court rule allowed for extensions of time when an appellant was docketing an appeal — as opposed to filing the notice of appeal — and the additional time had been allowed by the district court. As a result, the standard was whether the district court abused its discretion in granting the appellant additional time to designate the record on appeal. Thus, the failure to timely designate the record was not jurisdictional. 224 Kan. at 439-40.
Zwiener interpreted K.S.A. 1980 Supp. 22-3609, which in sub-part (2) stated that an appeal from municipal court could “be taken by filing a notice of appeal in the court where the judgment was rendered.” The appeal complied with this provision. Subpart (3) of that statute required the court from which the appeal was being taken to certify the complaint, warrant, and appearance bond. The lower court did not certify the record. Clearly, the statute contemplated this action would be a ministerial act of a judge or clerk occurring after the appeal was filed and after “the appellant has complied with the part of the appeal statute which requires him to take action.” 229 Kan. at 509. Noting these factors, the court held the lack of certified record was not jurisdictional. 229 Kan. at 510. By analogy, the provision of K.S.A. 2004 Supp. 26-508 requiring the case be docketed as a new civil action, a ministerial act performed by the clerk, would not be jurisdictional. However, the payment of the docket fee stated in the initial provision would be and is jurisdictional.
A third case cited in Legg, In re Duncan, involved K.S.A. 1980 Supp. 59-2401, which in suSpart (a) required an appeal to be filed within 30 days of the entry of an appealable order, judgment, decree, or decision in a case filed under the probate code. A different subpart of the statute required a bond. K.S.A. 1980 Supp. 59-2401(b). The court held that the only provision which was jurisdictional was contained in subpart (a) and the out-of-time filing of an appeal bond did not defeat appellate jurisdiction. 7 Kan. App. 2d at 198-99. Again, however, the filing of the bond was in a different provision from that establishing jurisdiction.
Avco, the other case cited in Legg, is also cited by and relied upon by Stranger Valley and the amicus and is the only cited case dealing with the issue of whether payment of a docket fee is jurisdictional. In Avco, a magistrate court entered summary judgment in favor of the plaintiff and the defendants appealed to the district court. The defendants filed a timely notice of appeal in the magistrate court but failed to pay the fee required to docket the case in the district court until several months later. The statute governing appeals from magistrate courts required two things to perfect an appeal: timely filing of a notice of appeal and “such security for costs as may be required.” K.S.A. 1974 Supp. 61-2102. Another statute provided that once the appeal was perfected, the magistrate judge or clerk was to prepare a complete transcript of the proceedings and transmit them along with all papers in the case to the clerk of the district court who should then docket the appeal. K.S.A. 1974 Supp. 61-2103. A third statute provided no case could be docketed in the district court without payment of a $35 docket fee. K.S.A. 1974 Supp. 60-2001(a).
Because the magistrate court had not required any security for costs pursuant to K.S.A. 1974 Supp. 61-2102, the only issue was whether, payment of the $35 docket fee under K.S.A. 1974 Supp. 60-2001(a) was necessary to perfect the appeal. The Avco court held it was not. The court concluded that K.S.A. 1974 Supp. 60-2001, which required the payment of the docket fee: “is not concerned with perfecting an appeal. Here the appeal was perfected when the notice of appeal was filed in the magistrate court . . . although the case was not docketed in the district court until [several months later].” 219 Kan. at 61. The court noted that no statute specified when the docket fee was to be paid and that
“[t]he time within which a docket fee is paid is secondary to actual payment [citation omitted] as we construe the conflicting statutes here in question. Since payment of the docket fee affects only the clerk of the district court, and an adverse party is not affected by the time of the payment of the docket fee, it should not be regarded as jurisdictional. [Citation omitted.]” 219 Kan. at 62-63.
While Avco held that the payment of a docket fee was not jurisdictional under the facts of that case, the statutes at issue there were very different from K.S.A. 2004 Supp. 26-508. In Avco, the requirement for the payment of a docket fee appeared in an entirely different statute from the one governing perfection of an appeal. In this case, the two requirements for perfecting an appeal in an eminent domain proceeding pursuant to K.S.A. 2004 Supp. 26-508 — the timely filing of a notice of appeal and the payment of the docket fee — are both contained not only in the same statute but in the same sentence. Further, the phrase imposing the 30-day time limitation applies to both requirements.
Stranger Valley points out that, similar to the facts of Legg and Avco, the district court in this case found there was no prejudice to KDOT in allowing the appeal to proceed. Nonetheless, because the payment of the docket fee is a jurisdictional requirement to perfect the appeal, whether KDOT would suffer prejudice by allowing the appeal to go forward is irrelevant.
Stranger Valley also argues that it is the function of the clerk of the district court to assign a new civil case number to an eminent domain appeal and to collect the docketing fee. According to Stranger Valley, if the clerk had refused to docket the appeal until the docketing fee was paid, the fee would have been paid. Essentially, Stranger Valley is asking that the clerk be responsible for giving legal advice to counsel, which is not the clerk’s role. As noted by the district court in rejecting this argument: “[T]he Clerk of the Court has no obligation or responsibility to inform the attorney they must pay the docket fee or that the docket fee could be paid at a later date.”
The amicus, Westgate, makes a few additional arguments. First, the amicus contends that it would be absurd to dismiss an appeal merely because of a typographical error regarding the case number; that docketing is a function of the clerk of the court, not the parties; that the statute does not require that the notice of appeal be docketed as a new civil action, but only that the appeal itself be so docketed after the notice of appeal is filed in the existing administrative case; and that this provision sets up a procedure different from other appeals.
No doubt these arguments are technically correct. However, in making these arguments, the amicus focuses on KDOT’s contention that docketing an appeal in an eminent domain case as a new civil action is a jurisdictional requirement of K.S.A. 2004 Supp. 26-508. As discussed above, the actual docketing of the appeal as a new civil action is not a jurisdictional requirement; only the payment of the docketing fee is jurisdictional. Further, many of the arguments of the amicus and Stranger Valley relate to policy concerns or second-guess whether the legislature really meant to require the payment of the docket fee in order to perfect an appeal. However, our role is not to determine whether sound policy dictates requiring a filing fee to perfect an appeal. Further, we must presume the legislature meant what it plainly stated and apply that unambiguous language and limit jurisdiction to appeals where those requirements are met.
Finally, the amicus contends that if the legislature intended to make the payment of the docketing fee a jurisdictional requirement for an appeal, it would have expressly stated that in plain language. The amicus again cites Anco and also cites cases from other jurisdictions where legislatures did just that, i.e., die statutes or rules at issue expressly provided that the payment of a docket fee was “jurisdictional” or necessary for “perfection” of an appeal by using those exact words.
However, the lack of the exact wording the amicus would like to see is not significant because the language of K.S.A. 2004 Supp. 26-508 is clear and unambiguous as written. If the legislature had intended that the payment of docket fee was not to be jurisdictional, it could easily have amended K.S.A. 2004 Supp. 26-508 by including the requirement of the payment of the docket fee in the same sentence (the fourth sentence) as the requirement that the appeal be docketed as a new civil action. Instead, it chose to include the requirement of the payment of the docket fee in the same sentence (the first sentence) as the requirement that the notice of appeal be filed within 30 days after the filing of the appraisers’ report, a requirement that is clearly jurisdictional. The plain and unambiguous language of the first sentence of the statute requires two things to perfect an appeal: the filing of a notice of appeal within 30 days and the payment of the docket fee. Therefore, the requirement of the payment of the docket fee is jurisdictional.
Furthermore, as KDOT argues in a secondary issue, the appeal in this case should have been dismissed. See Brown, 218 Kan. at 38. The district court correctly concluded it was without jurisdiction to enlarge the time for filing a notice of appeal in an eminent domain proceeding pursuant to K.S.A. 2004 Supp. 60-206(b) or to permit a filing out of time for excusable neglect as provided by K.S.A. 60-260(b). See City of Kansas City v. Crestmore Downs, Inc., 7 Kan. App. 2d 515, Syl., 644 P.2d 494, rev. denied 231 Kan. 799 (1982).
Reversed and remanded to the district court with directions to dismiss Stranger Valley’s appeal from the appraisers’ award in the underlying condemnation action.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Davis, J.:
Defendant Tyler Block Patton appeals her jury trial conviction of first-degree murder in violation of K.S.A. 21-3401(a) and her sentence of life imprisonment with the possibility of parole after 25 years directly to this court pursuant to K.S.A. 22-3601(b)(1). She raises nine issues on appeal. Our review of each issue establishes that no reversible error occurred during trial or sentencing. We therefore affirm her conviction and sentence.
On January 16, 2001, at 9:31 p.m., the Overland Park Police Department responded to a 911 call made by the defendant. She was inside her vehicle across the street from the residence she had shared with her husband, Ed Patton, Jr. She told officers that her husband had been sick with the flu and had wanted her to stay elsewhere. She stopped by the residence and entered through the garage, noticing debris and drawers thrown around and items scattered in the stairway. As she started up the stairs she heard a noise which scared her so she ran outside and called the police.
The responding officers entered the residence through the unlocked front door and noticed debris scattered throughout the house. Ed Patton’s body was discovered in an upstairs bedroom which was filled with the odor of a decaying body. He was lying on his back in bed with a blanket up to his neck, and his arms were down to his sides. A second blood-soaked blanket was placed over his head, the headboard was splattered with blood, and a piece of his skull was lying up against the blanket. The victim’s face was so bloody and swollen that it was unidentifiable.
Dr. Michel Handler conducted the autopsy and testified that the victim had been struck at least eight times in the face and skull and did not have any defensive injuries on his hands and arms to indicate that he was awake during the attack. Four small pieces of dark wood were found in his hair and face, which were later identified as part of a bloody 2-by-4 piece of wood found on the back porch of the residence. He ruled the cause of death a homicide and opined that the victim had been dead for at least 48 hours prior to discovery. Pathologist Dr. Thomas Bennett reviewed the autopsy report, photographs, interviews, and investigative reports and opined that the victim died either the late evening of January 14 or the early morning hours of January 15, 2001.
Marijuana and drug paraphernalia were found in the basement of the home. Evidence technician Andy Black opined that the extent of drugs discovered was consistent with personal use rather than someone involved in the sale of drugs. Officers discovered a pill bottle in back of the residence near a gate containing six different types of medication and three empty pill bottles inside the residence in the trash.
The defendant was interviewed by Detective Bobby Jo Hohnholt on January 17, 2001. The detective testified over objection that the defendant had recent cuts on her hands during this interview. Initially, the defendant told the detective that she cut herself while sanding cabinets but later said the cuts were from razor blades during a failed suicide attempt. At trial, the defendant said the cuts were from razors and screwdrivers she used while remodeling cabinets.
During this interview, the defendant characterized her relationship in a positive manner, indicating that the victim was the best man ever, that he had her on a pedestal, that she received anything she wanted, and that their marriage only got better over time. However, a January 2, 2001, tape-recorded argument between the defendant and the victim was discovered in the residence that indicated otherwise.
During the recorded argument, the victim indicated he thought the defendant wanted to commit suicide, and the defendant then said that she did not love him and wanted to end the relationship, that she was unhappy with their current residence and the amount of money the victim made, and that she planned to immediately move to a second home they had recently purchased. At trial, the defendant claimed for the first time that this fight was precipitated by her observing the victim using cocaine and that the tape recording was turned on well into the fight. The defendant moved to the new house on January 3, 2001, taking most of the contents of the marital residence with her.
The defendant told the detective that on Monday, January 15, 2001, she stayed home to work on remodeling her new house be cause it was a holiday. The victim called her at about 10 a.m. saying that he missed her and wished they could be together. She went shopping at Name Brand Clothing or Home Depot but made no purchases. She then drove by the victim’s residence but did not stop. At trial, she said that she stopped by the residence to pick up some articles and put clothes in the dryer. The victim told her not to bother him for a few days because he was sick and wanted to get well, and he asked her to take care of the real estate calls as they came in. She purchased a microwave at Sears at 5:27 p.m. that day, went to Walmart, and arrived home at her new house after 9 p.m.
On Tuesday, Januaiy 16, 2001, the defendant met with an employee of Drywall Basements to get an estimate on basement repairs around 10 a.m. and then drove by the victim’s house on her way to a bank. The time on her bank receipt was 12:56 p.m. She went to a library and printing shop, although she did not have a receipt from either place. She purchased keys from a lock and key store at 1:36 p.m. She went to Lowe’s but made no purchases there either, and she went to Burlington Coat Factory to purchase a pair of work jeans at 3:50 p.m.
She met with her visiting parents at their hotel between 4:30 and 5 p.m. The defendant and her parents subsequently drove to her new residence, passing the victim’s residence on the way. Although the defendant thought it was unusual that the house appeared dark, she did not stop. Her parents stayed for about an hour, and then the defendant went to Home Depot to buy several items so she would have an excuse to stop by the victim’s home. The receipt showed the transaction took place at 8:39 p.m. After being told that the 911 call was placed at 9:27 p.m., she could not recall whether she went straight to the victim’s home or stopped at her new home first. At trial, she remembered that she had run back into Home Depot to look at other items. She left the victim nine voice mail messages throughout the day the victim’s body was found.
The defendant was charged with premeditated first-degree murder. The State’s expert witness testified at trial that the crime scene appeared to be staged to make investigators believe that the mur der was committed by an outside intruder during a burglary. He pointed to evidence that although numerous items of financial value had been disrupted, they were not damaged or broken. Nothing was determined to have been stolen from the residence, and things that normally are not disturbed during burglaries had been. The only items of value which were removed from the residence were a halogen light and computer speakers, which were not consistent with a burglary based on their relative values. Although an individual spent some time combining prescription pills into one bottle, it was left behind. Marijuana found on the steps in the basement appeared to have been spread out.
DNA testing revealed multiple samples of blood from the residence and the defendant’s vehicle that either matched the defendant’s DNA profile or would not exclude her as the known source of the sample.
The statistical probability of selection of an unrelated individual at random from the population having a DNA profile matching the blood sample of the defendant would be about 1 in 53.9 billion. The following blood samples matched the defendant’s DNA profile: (1) A bloodstain found on a blanket on the bed where the victim was murdered, (2) a blood sample found on a dresser sitting inches away from the murder weapon, (3) a bloodstain on the dryer knob in the victim’s residence (while a bloodstain near the dryer door handle matched the victim’s DNA profile), and (4) blood on a tissue in her vehicle.
The statistical probability of selection of an unrelated individual at random having a DNA profile that could not be excluded as being a contributor to a mixture of blood or a single blood sample varied between the samples. The defendant could not be excluded as a contributor to the bloodstains in the following samples: (1) A mixture of blood from the victim and at least another person on the murder weapon (1 in 431,000); (2) blood found on the sheets and pillow where the victim was murdered (1 in 27,880); (3) blood on the dryer door (1 in 7); (4) a bloodstain on the front passenger seat of the defendant’s vehicle; and (5) a tissue with biological matter found in the defendant’s vehicle.
Several witnesses offered marital discord testimony indicating that the victim wanted to separate from the defendant but she was not financially capable of taking care of herself. The victim had described the defendant as crazy and as having significant mood swings where she would become violent, scream, and throw things.
Evidence was presented that the victim’s mother was financially secure and had provided the couple with nearly $25,000 over the course of the year leading to the victim’s death and that she gave the defendant $10,000 after the victim’s death. The victim’s mother was unaware of problems in the marriage. Additionally, if the defendant was acquitted of the murder charges, the defendant would have received $126,000 from the sale of the couple’s real estate properties following the victim’s death. The defendant also expressed frustration after she found out that she was not the designated beneficiaiy of the victim’s retirement account balance of $103,000.
The defendant presented multiple theories of defense that someone else committed the murder or that it was drug related. Witness Nancy Pratt testified that another individual, J.S., had knowledge of the victim’s murder prior to the information becoming public and had given contradictory stories about when he last saw the victim alive. Another witness, K.R., testified that she and the victim had used cocaine and methamphetamine between 1996 and 1999 and the victim had taken a trip to Pittsburg, Kansas, where another individual, M.D., lived, possibly to buy drugs.
The defendant testified that M.D. and the victim had a screaming match at the residence and the defendant was told to go and wait upstairs. Later that same fall, the victim became angry with M.D. because she had brought strangers to the victim’s house. On three occasions after the murder, the defendant called the police and reported a possible intruder. Former Federal Bureau of Investigation (FBI) Agent Danny Conway testified that in his opinion, drug use places an individual in a high risk category for violence.
The defendant was convicted of premeditated first-degree murder and was sentenced to life imprisonment with the possibility of parole after 25 years. Her motions for new trial and judgment of acquittal were denied. Additional evidence necessary to resolve die issues raised by the defendant is set forth below.
1. Exclusion of Drug — Related Evidence Relevant to Theory of Defense
Under our state and federal constitutions, a defendant is entitled to present the theory of his or her defense. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003). The defendant’s fundamental right to a fair trial is violated if relevant, admissible, and noncumulative evidence which is an integral part of the theory of the defense is excluded. See State v. Mays, 254 Kan. 479, 487, 866 P.2d 1037 (1994).
However, the right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure. State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993). An appellate court’s first consideration when examining a challenge to a district court’s admission of evidence is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. State v. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 ( 2004).
“Generally, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as ‘evidence having any tendency in reason to prove any material fact.’ K.S.A. 60-401(b). Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. [Citations omitted.]” State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004).
Beyond relevance, an appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. State v. Cordray, 277 Kan. 43, 58, 82 P.3d 503 (2004).
The defendant argues her theory of defense revolved around the fact that the victim was a drug user who had substantial associations with known drug users in Kansas and Missouri and that this evi dence was relevant to prove that other persons had motive and opportunity to commit the crime and to show that one of the State’s expert witnesses received incomplete information on which he based his opinion. She argues the trial court erred in excluding various drug-related evidence throughout the trial and that the cumulative effect of those errors requires reversal.
a. Cross-Examination of State’s Expert About Known Drug Associates
At trial, Alan Brantley, a supervisory special agent with the FBI, testified on behalf of the State. After previously reviewing the entire police file and visiting the residence, he opined that the crime scene was staged to divert attention away from someone who would be considered a logical suspect or was diverted from a logical motive. Part of Brantley’s determination involved what the particular risk factors were to the victim of the crime.
During cross-examination, defense counsel asked Brantley if he became aware of a person, E.C., in connection with the investigation, but Brantley did not recall that name. Upon the State’s objection, the defense proffered testimony that E.C. was a major drug dealer in the Kansas City area who was murdered in 1989 or 1990. At the time of E.C.’s death, P.G. was E.C.’s live-in girlfriend. P.G.’s name was found in an address book at the victim’s residence, and she was also the sister of the victim’s first wife. The defense argued that Brantley should have been given this information in order to appropriately assess the risk factors in his analysis. The court ruled that the probative value of the evidence was far outweighed by its prejudicial nature and the information was too remote in time.
On appeal, the defendant argues that if Brantley had been aware that the victim previously associated with known drug conspirators, including someone who was murdered, then the risk factors would have been increased, possibly affecting Brantley’s total assessment of the crime scene. The defendant’s argument is without merit.
Initially, a question arises concerning the relevancy of this evidence, as the defense was unable to proffer any evidence that E.C.’s murder had anything to do with the murder in this case. However, Brantley testified that he did look at the level of the victim’s participation and involvement with drugs and considered it as a risk factor. Even if this evidence was relevant to demonstrating an increase in the personal risk factors to the victim, it is unlikely that this evidence alone would have had any effect on Brantley’s firm opinion that “[c]learly the level of violence and tire other activity within this residence is inconsistent with a burglary for financial gain or other acquisition of property [as the crime scene was staged to appear], but it is consistent with a personal cause homicide.” As this evidence seemingly would not have changed Brantley’s evaluation, the trial court properly concluded that this evidence was tenuous, too remote in time, and more prejudicial than probative.
Moreover, the defendant was given the opportunity to pursue the theory of defense that the victim’s drug use could have created other motives for tire murder. Defense counsel extensively examined Brantley about the police department’s investigation of the victim’s drug dealers and the marijuana, methamphetamine residue, and drug paraphernalia found at the residence, and he elicited testimony from Brantley that drug dealers sometimes kill or beat up their customers who do not pay. Additional testimony was also presented that the victim had drugs in his home, used drugs, had arguments with an alleged drag dealer, and that the victim’s drug use put him at a higher risk for violence. As such, the trial court did not abuse its discretion in excluding the proffered evidence.
b. Cross-Examination Regarding a Name in the Victim’s Address Book
The defendant’s argument here is related to the previous issue. The defense asked Detective Hohnholt if she recalled defense counsel giving her the name of P.G. from tire victim’s address book. The trial court sustained the prosecution’s objection that the issue had already been addressed by the court and told defense counsel to “[m]ove along.” Defense counsel made no further argument or proffer of evidence following the court’s ruling.
On appeal, tire defendant argues that she was prevented from eliciting evidence that would have been valid impeachment of Brantley s testimony and would have supported her theory of defense. However, the defendant failed to comply with K.S.A. 60-405 after the prosecutor’s objection was sustained:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of tire erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated tire substance of the expected evidence by questions indicating the desired answers.” K.S.A. 60-405.
When this issue arose during cross-examination of Brantley, the defense proffered that it had given the information about P.G. to Hohnholt and that the detective was familiar with the E.C. case. However, the key issue that the defense wanted to get to — whether die detective actually informed Brantley about this possible association between the victim and P.G. — who had been convicted of being involved in a drug conspiracy with E.C., who had been murdered, was never proffered to the trial court. The defense neglected to obtain permission to ask the detective this question to make an adequate proffer. Without knowledge of how the detective would have responded, this court cannot make an adequate review of die issue and the judgment will not be set aside.
Assuming arguendo the defendant had been permitted to ask if the detective had relayed this information to Brantley, the response would not have been relevant to impeaching the agent’s testimony. While Brantley testified that a search of the FBI system did not reveal any known drug associates of the victim, he also testified that he was aware that the police department had followed up on different leads regarding possible drug dealers. Although he could not remember specific names, he had taken into account the victim’s drug connection as part of the risk analysis. Thus, regardless of whether the detective did tell Brantley about this particular drug connection, Brantley’s testimony would not have been impeached.
Finally, as discussed in subsection (a), the trial court had already properly ruled that testimony regarding P.G. and E.C. was more prejudicial than probative because it was too tenuous and remote in time. The defendant has failed to establish an abuse of discretion by the trial court in this ruling, and we conclude that the evidence was properly excluded.
c. Hearsay Objection Regarding the Victim’s Drug Dealer Associate
Detective Hohnholt took part in the homicide investigation of the victim in this case. On cross-examination, she testified that she received contradictory statements from people regarding whether the victim used methamphetamine. Defense counsel asked if someone told her that the victim got his drugs from M.D., who lived in Pittsburg; the detective replied yes, and counsel then asked if she had investigated M.D. The State objected on hearsay grounds.
The defendant proffered that the detective had investigated M.D. and learned that M.D. was targeted by Pittsburg police for importing methamphetamine from Mexico. Once M.D.’s alibi for the time range when the victim was killed checked out, the detective conducted no further investigation. The defense argued that her investigation was not hearsay and was relevant to show that known drug associates existed who Brantley was not aware of during his risk evaluation. The State argued that the question about what someone told the detective while investigating the case was a classic example of hearsay and the defendant was offering the statement for the truth of the matter asserted. The trial court agreed and sustained the objection.
On appeal, the defendant correctly points out that the hearsay objection was ill-timed, as it is obvious that the objection was meant to refer to the previous question regarding M.D. The defendant contends that the testimony could have been admitted without hearsay and the fact that someone investigated a crime is not hearsay.
“An out-of-court declaration by a third party to a police officer which is offered at trial merely to explain the officer’s conduct in the investigation of a crime, although hearsay, is usually admissible because it is not offered for the truth of the matter stated. However, when such declaration also directly incriminates the defendant, it is inadmissible unless it falls within one or more of the hearsay exceptions of K.S.A. 1992 Supp. 60-460.” State v. Johnson, 253 Kan. 75, Syl. ¶ 7, 853 P.2d 34 (1993).
The problem in this case, however, is that the defendant did not want to explain the detective’s conduct, but wanted to establish the truth of the matter that M.D. was the victim’s drug dealer and that this information was not passed on to Agent Brantley to include in his analysis of the victim’s risk factors. This is evident because the defendant points to Brantley’s testimony that the victim’s name did not show up in the FBI database as being associated with any drug dealers or informants. This “drug investigation” evidence was hearsay because it was a statement which was made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated. See K.S.A. 2004 Supp. 60-460.
Assuming that the trial court erred in sustaining the hearsay objection, the error was harmless because it had little likelihood, if any, of changing the result of the trial. See State v. Boldridge, 274 Kan. 795, Syl. ¶ 8, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). Brantley testified that he had reviewed the entire police file in this case and while he could not remember specific names, he did recall that the police had investigated different leads about who was supplying the victim with drugs. Brantley was aware that the victim was involved with drugs, and he took this risk factor into account when determining if the crime scene was staged. Moreover, M.D. testified at trial, and the defense cross-examined her at length about her use of methamphetamine and handwritten correspondence with the victim in code about prices for methamphetamine. Thus, the defendant was able to enter evidence of the drug-dealing relationship between M.D. and the victim.
d. Hearsay Objection Regarding Inconsistent Statements
Defense witness Nancy Pratt testified that the victim introduced her to J.S. Pratt and J.S. had a relationship which later ended. Pratt testified that J.S. called her the day after the body was discovered and told her that Patton had been murdered, which she found significant because she did not believe that Patton’s identity had been made public. She spoke with J.S. by telephone several more times that week. Defense counsel then asked, “Did he say anything about having seen Ed Patton alive?” She responded, “Yeah. He said — ,” and the State objected on hearsay grounds that the defense had not indicated it was going to call J.S. as a witness.
Defense counsel argued they were not offering the statement for the truth of what J.S. said but to establish he had told Pratt different stories about the last time he had seen the victim alive. The defense proffered that J.S. told Pratt that he may have been the last person to see the victim alive because he had seen him Sunday afternoon in Prairie Village buying cold medicine. J.S. later said tliat he saw the victim walking across the street in front of a movie theater in Prairie Village. However, it was later discovered that J.S. was working during the time that he claimed he saw the victim. Defense counsel indicated that they had subpoenaed J.S. but were not going to call him as a witness because they believed he would not be truthful. Defense counsel argued this evidence was probative in part because J.S. appeared to know that the victim was taking cold medicine and the autopsy revealed antihistamine in the victim’s system. The trial court sustained the hearsay objection.
On appeal, the defendant reiterates the argument that Pratt’s conversations with J.S. were not being offered to prove the truth of the matter asserted but rather were offered to show J.S.’s inconsistent statements about the last time he saw the victim alive. The State argues the defendant was offering the hearsay statements made by J.S. to prove the truth of the matters asserted, i.e., that J.S. knew much more about the homicide than reported by the media and must have been the killer.
“Hearsay is defined as an out of court statement offered to prove the truth of the matter asserted. An extrajudicial statement is inadmissible as hearsay only when offered as evidence of the truth of the matter to which it relates. If the statement is offered to show either the fact of its having been made or to prove the effect on the listener, it is admissible through the person who heard it.” State v. Smith, 271 Kan. 666, Syl. ¶ 1, 24 P.3d 727, cert. denied 534 U.S. 1066 (2001).
In State v. Vontress, 266 Kan. 248, 252-53, 970 P.2d 42 (1998), this court held that statements made to a police officer by an unavailable alibi witness who did not testify at trial were admissible because they were not offered to prove the truth of the matter asserted, but were offered to demonstrate the inconsistencies in Vontress’ alibi statements and to explain why the detective interviewed Vontress three times the day after the murder.
The inconsistent statements in this case were relevant and being offered for two purposes: (1) To show that J.S. had extra knowledge about the murder because he knew the victim was taking cold medicine and (2) to show that J.S. had made inconsistent statements about when he last saw the victim alive. The first purpose for admitting the statements was clearly offered to demonstrate the truth of the matter stated, i.e., that J.S. knew the victim was taking cold medicine, rendering it inadmissible hearsay because J.S. did not testify at trial.
However, regarding the second purpose, Vontress provides that evidence of inconsistent statements heard by a nontestifying witness are not inadmissible hearsay. Although the trial court in this case found the testimony was inadmissible hearsay, the court seemed to remedy the situation by permitting Pratt to testify generally that she had subsequent telephone conversations with J.S. in which he changed his stories about the last time he saw the victim alive. In this fashion, the jury was able to hear that J.S. had provided inconsistent accounts of seeing the victim prior to death without hearing the inadmissible details regarding the cold medicine. While the trial court improperly characterized the statements as inadmissible hearsay, the defense was given the opportunity to demonstrate its theory of defense that J.S. had something to do with the victim’s murder. As such, we find the error was not reversible.
2. Batson Challenge
The defendant argues that the State did not provide a race-neutral reason for its peremptory strike of a person of Middle-Eastern descent during voir dire. She contends this violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution under Batson v. Kentucky, 476 U.S. 79, 88-89, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
“The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, tire prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the Batson analysis. Finally, tire trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.” State v. Washington, 275 Kan. 644, Syl. ¶ 2, 68 P.3d 134 (2003).
Whether a prima facie showing of a racially based strike of a potential juror has been made is a question of law subject to plenary review. The trial court decision about whether the State acted with discriminatory purpose, however, is subject to an abuse of discretion standard of review. State v. Williams, 277 Kan. 338, 353-54, 85 P.3d 697 (2004).
The defendant raised a Batson challenge because the State used two of its three peremptory strikes to exclude the only two ethnic minorities on the alternate panel, a woman of Middle-Eastern descent and a woman of Asian descent. The first minority woman called was not asked any questions during voir dire. The second minority woman expressed that she was a project manager leading two major projects on a tight schedule and she hoped that those work problems would not interfere with her ability to pay attention. Regarding the first minority woman, the two prosecutors responded:
“MR. GUINN: Judge, if I may handle the record because myself and Ms. Spradling consulted with each other, most of the minorities that were on this last alternate panel in our opinion were acting very nervous in terms of their mannerisms.
“The first one drat was called, the first female came up to the court’s court reporter and wanted to let her know of matters that we couldn’t understand.
“But it seemed to me that there was a nervousness about their participation and tire process. And we are of the opinion we want strong individuals on this jury, not people who are nervous, concerned about the difficult job, and that certainly entered our decision-making process.
“I think we also had some concerns with the lady who came up to the court reporter initially, that she had difficulty with communicating. I recall from her jury questionnaire drat she hasn’t been in this area for a lengthy period of time, and I don’t recall her speech was—
“MS. SPRADLING: It was very accented.
“MR. GUINN: It seem[ed] to be very accented.
“MS. SPRADLING: I couldn’t understand her.
“THE COURT: It is the Court’s opinion there were sufficient race-neutral reasons advanced by the State to exercise the peremptory [strikes] of the two minority individuals.”
The defendant’s argument begins with the second step of the Batson analysis. See Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991); United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir. 1991) (first step becomes moot whenever prosecutor offers race-neutral explanation for peremptory challenges and trial court rules on ultimate factual issue of whether prosecutor intentionally discriminated).
The defendant argues that the State did not meet its burden of offering a facially valid race-neutral explanation for striking the potential jurors. She contends the State’s only concern with the first minority woman was the possibility of language difficulties and it failed to articulate that she would not be able to understand the case or that she would need an interpreter. The defendant argues that the State’s concern regarding her accented voice was a race-related reason, that nothing other than her race or ethnicity was articulated, and that the trial court made no effort to discover it.
We find this argument to be without merit for two reasons. First, aside from the first potential juror’s difficulty in communicating, the prosecution expressed concern that she was displaying nervous mannerisms and acting generally nervous about participating in the trial process. Body language is a race-neutral reason to strike a potential juror. See State v. Arteaga, 257 Kan. 874, Syl. ¶ 5, 896 P.2d 1035 (1995). We note that other jurisdictions have upheld challenges under Batson where a juror acted nervous and had trouble communicating. See Brown v. Kelly, 973 F.2d 116 (2d Cir. 1992) (race-neutral reason that potential juror who would be foreperson was very nervous and would not be able to communicate well with the court); People v. Staten, 746 P.2d 1362, 1366 (Colo. App. 1987) (excluded black potential juror had limited educational background, had difficulty communicating, was extremely nervous, and did not respond adequately to questions).
Second, in United States v Murillo, 288 F.3d 1126 (9th Cir.), cert. denied 537 U.S. 931 (2002), the Ninth Circuit Court of Appeals found that a Filipino potential juror’s claim that she had never read a book and Judge Judy was her favorite TV show, coupled with her trouble communicating, were permissible grounds for a prosecutor s peremptory challenge. The court rejected the defendant’s claims that difficulty communicating implies an inherent discriminatory intent, noting its holding that “ ‘[s]o long as the prosecutor . . . can convince the district court that the potential juror who is being struck in fact has difficulty with English, the justification is race-neutral.’ ” 288 F.3d at 1136 (quoting United States v. Changco, 1 F.3d 837, 840 [9th Cir.], cert. denied 510 U.S.1019 [1993]).
The defendant in this case did not object to the prosecution’s explanation that the first potential juror had approached the court reporter, had difficulty communicating, had very accented speech, and one of the prosecutors could not understand her. See Bolton, 274 Kan. at 18 (“[I]f the defendant or the trial court do not correct errors in statements of fact as presented by the prosecutor as reasons for exercising peremptory challenges, these facts will be considered as true for purposes of determining whether the prosecutor set forth a race-neutral reason for the strike.”). The fact that this criteria might exclude other minorities who are not very familiar with the English language would not prevent this from being viewed as a race-neutral factor. See Hernandez, 500 U.S. at 362. “The second step does not require an explanation that is persuasive, only one that is facially valid, because that is not where the validity of the strike is considered.” Bolton, 274 Kan. at 9. As two race-neutral reasons were supplied by the prosecution, we find the second step of the Batson analysis was met in this case.
It is not until the third step that the persuasiveness of the justification becomes relevant, and implausible or fantastic justifications may be found to be pretexts for purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995). The Murillo court explained that a trial judge is in the unique position to determine whether a potential juror has difficulty communicating, as it is difficult to ascertain from a transcript the level of a juror’s command of spoken English: “How slowly she spoke, whether she hesitated, how thick her accent was, and what her body language revealed are not recorded in a tran script, yet, these are aspects of communication that may be considered by the trial judge.” 288 F.3d at 1136.
The defendant argues that the trial court abused its discretion by summarily ruling that sufficient race-neutral reasons were advanced by the State without inquiring of the first potential juror. The defendant cites no authority that a potential juror must be questioned by the trial court before making a determination. The trial court had the opportunity to observe the potential juror and listen to her speak to determine whether the prosecutions statements were credible, and this court gives great deference to die trial court in this area. See Washington, 275 Kan. at 654 (great deference is given to the trial judge under the third step because the findings turn upon evaluation of the prosecutors credibility). Based on the reasons given by the prosecution, which were not objected to by the defense, it cannot be said that no reasonable person would have ruled in the same manner as the trial court. The trial court did not abuse its discretion in denying the defendant’s Batson challenge.
3. Admission of Marital Discord Evidence
Prior to trial, the State filed a motion to allow evidence of discordant relationship. Specifically, the State sought to admit the testimony of Kelly Miles, Barry Ashner, Gwendolyn Hicks, Jan Le-bow, and Dennis Hansey, as well as the victim’s diary and a taped conversation between the victim and the defendant. The State argued that our courts have approved discordant relationship evidence and a defendant’s previous ill-treatment of a partner as relevant in bearing on the defendant’s motive and intent, noting that “Kansas decisions have found any objection based upon hearsay to be meritless. State v. Mayberry, 248 Kan. 369, 384, 807 P.2d 86 (1991); State v. Wood, 230 Kan. 477, 479, 638 P.2d 908 (1982); State v. Phipps, 224 Kan. 158, 160, 578 P.2d 709 (1978).”
The defendant filed a memorandum in opposition to the State’s motion, arguing that the majority of tire proposed evidence was inadmissible hearsay precluded by K.S.A. 2004 Supp. 60-460; that admission of the evidence violated the Confrontation Clause of the Sixth Amendment to the United States Constitution; .that any state ments offered for a nonhearsay purpose were irrelevant to show motive or intent; and that much of tire evidence concerning descriptions of the defendant’s mood swings, anger, and complaints about their home did not constitute marital discord evidence. The defendant argued that the marital discord cases relied upon by the State confused relevance with the competence of a witness to know for a fact what he or she was saying was true and failed to consider a Confrontation Clause analysis. At the pretrial hearing, tire defendant argued that although case law supported the proposition that in a case involving spousal homicide evidence of a discordant relationship is relevant, “that does not in any way, shape, or form answer the hearsay objection or the Confrontation Clause objection.”
After the pretrial hearing, the trial court granted the State’s motion to allow the evidence of a discordant relationship and adopted the reasoning set forth in the State’s motion. The court held that the brief marital relationship of the parties was also admissible as res gestae, an exception to the hearsay rule. The court found that in the absence of a recognized exception, it had discretion to allow hearsay evidence if the proffered hearsay had sufficient indicia of reliability and trustworthiness.
The court also found that the third-party witnesses who would testify, based upon their proffered testimonies, did not appear to have any ax to grind or any incentive to misstate the victim’s or the defendant’s comments. Additionally, the court took into account the fact that the proffered witnesses’ testimonies appeared consistent and relevant. The court indicated that the comments made by the defendant at the funeral showed resentment. The court further found that although the defendant had not been convicted, it had made a finding of probable cause at the preliminary hearing that she had killed her husband, thus supporting the State’s contention that the victim was unavailable at the hands of the defendant. Balancing these two points, the court concluded that it was appropriate and fair to admit this evidence.
At trial, Barney Ashner testified that before the victim married the defendant, the victim confided to Ashner that he and the defendant were not getting along, that they argued a lot, that she was crazy, and that he wanted to end the relationship and get her out of the house but she did not have a job or money. The defendant raised a continuing objection to this testimony on the grounds of hearsay and relevance and for being improper marital discord evidence as set forth during the pretrial hearing.
Daniel Waldert likewise testified that the victim consulted with him and Ashner a few months before he got married seeking advice on how to end the relationship because the defendant could not financially support herself. After the marriage, Waldert had several conversations with the victim, who relayed they were having significant marital problems. No hearsay, confrontation clause, or marital discord objections were raised to this testimony at trial.
Dennis Hansick worked in the same room with the victim and would overhear his telephone conversations with the defendant. Hansick described some of the telephone calls as stressful, causing the victim to become depressed and leave the premises. These incidents happened about twice a month. The victim confided to Hansick that his relationship was stressful and he was trying to search out a way to terminate it. The defendant did not raise any hearsay, confrontation clause, or marital discord objections to this testimony.
Gwendolyn Hendricks, the victim’s cousin, had a conversation with the defendant at the victim’s funeral. Hendricks remarked that the victim was such a generous person and that she was glad to see he had done so much for children. The defendant responded that the victim had done those things, but he did not have any money and had written a lot of bad checks. The defendant objected to this marital discord testimony based on the arguments previously made during the pretrial hearing.
The victim told Kelly Miles in January 2001 that he had to postpone a meeting because he was having problems with his wife having mood swings, which he described as “a Jekyll and Hyde type thing.” He indicated that one moment she would be extremely loving and talking, and then in a split second she would be violent, screaming, and throwing things. He explained that he was in the process of helping her move into a rental property that he owned so they could have a break from each other. The defense’s objec tion that this mood swing evidence was beyond marital discord and was inadmissible character trait evidence was overruled.
Susan Cortez testified that she called the victim on the evening of January 12, 2001, and asked him if he wanted to get together to catch up. He said that he did not want her to come to his house because he was afraid that the defendant would come home. Although they had been friends for 19 years, Cortez never met the defendant because the victim said she was extremely jealous. The victim agreed to meet Cortez at her office, and when he arrived, he appeared frightened and said he was afraid that the defendant had followed him to the office. He asked if they could move to an area without windows and only had a brief conversation with her before leaving. The defense objected to Cortez’ testimony on the grounds that she was not disclosed as a marital discord witness. The State responded that the defense was aware of the nature of this testimony and that it was relevant to res gestae. The court admitted the evidence as res gestae because the meeting happened very close to the time of death.
Without objection, the court admitted excerpts from the victim’s diary, entitled “Tyler Time Journal,” which reflected his observations of the deterioration of the marital relationship and its current problems. A recording and transcript of an argument between the victim and the defendant which had occurred approximately 2 weeks prior to the victim’s death was also admitted into evidence. During the argument, the defendant stated she did not love the victim, complained about their home, and said that she wanted to move to the rental home to get away from the victim.
The defendant argues that the trial court abused its discretion by admitting hearsay evidence of marital discord. The defendant contends this marital discord evidence was not relevant to prove the State’s theoiy of the case that the defendant killed the victim for financial gain and characterizes it instead as improper character evidence of the defendant. The defendant’s argument on appeal focuses on the relevance and the characterization of the marital discord evidence issues; the defendant has abandoned her hearsay and Confrontation Clause arguments raised below. See State v. Seck, 274 Kan. 961, 965, 58 P.3d 730 (2002) (issue not briefed on appeal deemed abandoned). Thus, we focus our analysis on whether this marital discord evidence was relevant to the State’s theory of the case or if it was improper character evidence.
An appellate court’s first consideration when examining a challenge to a district court’s admission of evidence is relevance. State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). Once relevance is established, the admissibility of marital discord evidence in marital homicide cases properly rests in sound discretion of trial court. State v. Haddock, 257 Kan. 964, 979, 897 P.2d 152 (1995).
Evidence of a discordant marital relationship is admissible to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the witnesses as to the act charged. State v. Green, 232 Kan. 116, Syl. ¶ 4, 652 P.2d 697 (1982). “[A]s a general rule in a case of marital homicide, evidence of a discordant marital relationship and of the defendant’s previous ill treatment of the spouse is relevant as bearing on the defendant’s motive and intent. [Citations omitted.]” State v. Cheeks, 258 Kan. 581, 588, 908 P.2d 175 (1995). “[Ejvidence of prior discord between a defendant and a victim does not have to rise to a violent level to be admissible.” Haddock, 257 Kan. 964, Syl. ¶ 3.
“Kansas courts have consistently allowed evidence of marital discord in cases involving marital homicide. Evidence of marital discord can include several types of evidence: Oral and written statements made by the deceased spouse relating their abuse; evidence of scarring, bruising, bleeding, and other physical manifestations of the abuse; testimony by others who saw the couple fighting, arguing, or otherwise in conflict; and statements by the defendant relating that he or she will kill his or her spouse. This testimony may fall under the traditional notion of hearsay or evidence of prior bad acts, yet still be admitted.” State v. Drach, 268 Kan. 636, Syl. ¶ 7,1 P.3d 864 (2000).
In State v. Roberson, 272 Kan. 1143, 1152-53, 38 P.3d 715, cert. denied 537 U.S. 829 (2002), this court held that Roberson’s diary excerpts showing a discordant sexual relationship and his volatile emotions were powerful evidence of motive, intent, and the continuing, ongoing relationship between Roberson and the victim. This court rejected his argument that the evidence was inadmis sible under K.S.A. 60-447 as character traits of proof of conduct. 272 Kan. at 1152-53.
In this case, the State’s theory was that the defendant murdered the victim for financial gain, staged the crime scene to make it appear as if it had been a burglary, and then portrayed their relationship as “rosy” to steer the investigation away from her as a suspect. The above described evidence, regardless of how it was admitted at trial, constituted marital discord evidence which was relevant to motive and intent. See Drach, 268 Kan. at 648 (irrelevant that marital discord evidence was admitted as res gestae when it was admissible on other independent grounds). All of the evidence demonstrated a continuing course of problems in the relationship and most had some connection to the financial status of the defendant. Additionally, we note that the defendant failed to contemporaneously object to the testimony of Waldert and Han-sick or to the admission of the victim’s diary. See State v. Whitesell, 270 Kan. 259, 283-84, 13 P.3d 887 (2000) (A party cannot raise an issue on appeal where no contemporary objection was made and the trial court did not have an opportunity to rule.). We conclude that the trial court did not abuse its discretion in admitting this evidence.
4. Admission of K.S.A. 60-455 Evidence
Three requirements must be satisfied for the admission of evidence under K.S.A. 60-455. First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice. If these requirements are met, the scope of appellate review is limited to whether the trial court abused its discretion. State v. Moore, 274 Kan. 639, 647, 55 P.3d 903 (2002); see State v. Overton, 279 Kan. 547, 551-55, 112 P.3d 244 (2005).
Prior to trial, the State moved to admit K.S.A. 60-455 evidence that the defendant had struck her previous husband, Rex Huston, in the head with a flower pot following an argument to show identity. After a pretrial hearing, the trial court found that the identity of the killer was at issue, that the victim was killed in an unsus peering manner with a blunt object, and that the victim was the husband of the defendant at the time. The court further found: “The evidence pertaining to Rex Huston also suggests that Mr. Huston was also the victim of a blunt object delivered in an unsuspecting blow. The court cannot ignore that striking similarity.” The court found that while the remoteness in time of the incident may affect the weight the factfinder might give the evidence, its probative value still outweighed the prejudicial value of the evidence.
At trial, Huston testified about the incident that happened when he was married to the defendant in the 1970’s. After he had refused to allow the defendant to use his vehicle, he sat on the sofa to watch television. She hit him on the side of the head with a flower pot, knocking him to the floor and rendering him unconscious for a few minutes. When he woke up, the defendant and the car were gone. The defendant did not seek medical treatment or call the police.
The State correctly points out that the defendant failed to object when Huston’s testimony on this issue was offered at trial. ’When an unfavorable ruling on an evidentiary question prior to trial is received, a party must make a timely objection to such evidence when introduced at trial in order to preserve this issue for appeal.” State v. Lane, 262 Kan. 373, Syl. ¶ 7, 940 P.2d 422 (1997). The defendant has not properly preserved this issue for review.
However, without deciding the question, if we were to conclude that the trial court erred in its K.S.A. 60-455 ruling, the trial court’s error would be subject to a harmless error analysis.
“ ‘The admission or exclusion of relevant evidence in a criminal case is governed by two rules, the harmless error rule and the federal constitutional error rule. K.S.A. 60-261 sets out the harmless error rule. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. At every stage of the proceeding, the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved.
“ ‘Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed die result of die trial. Where die evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected die result of the trial, such admission or exclusion is harmless.’ ” State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004) (quoting State v. Sanders, 258 Kan. 409, 418-19, 904 P.2d 951 [1995]).
Applying this dual test, it is clear that the admission of the altercation between the defendant and her ex-husband was not inconsistent with substantial justice, did not affect the substantial rights of the defendant, and had little, if any, likelihood of changing the results at trial. As the evidence of guilt in this case was overwhelming, this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result at trial and was thus harmless.
5. Admission of Expert Testimony Regarding Crime Scene
Agent Brantley testified about his background and qualifications at trial. He had been employed with the FBI for 19 years and was currently the supervisory special agent assigned to the National Center for tire Analysis of Violent Crime in the Behavior Analysis Unit. He had an undergraduate degree in psychology, a master’s degree in psychology and counseling, and had also done post-masters work. Prior to worlang for the FBI, he was a psychologist with the North Carolina Department of Corrections for 6 years. He worked as an FBI field agent for 6 years and had been on the faculties of the FBI Academy of tire University of Virginia, Virginia Commonwealth University, and Walter Reed Army Medical Center teaching in the areas of violent crime, homicide investigation, assessment of violent crime scenes, assessment of deaths and dangerousness, youth violence, and terrorists.
Brantley has gone through specialized training at tire behavior analysis unit on the topics of violent crime scene analysis, homicide investigation, and violent criminal behavior. The purpose of criminal investigative analysis is to provide information to investigators, attorneys, mental health professionals, and jurors about violent crime behavior that usually goes beyond the personal and professional life experience of those individuals. At the time of trial, he was a member of the International Homicide Investigators Association, Harvard Associates in Police Science, the Association of Threat Assessment Professionals, the International Association of Criminal Investigative Analysis Fellowship, and he had testified as an expert in this field in the United States and Canada.
Prior to trial, the trial court denied the defendant’s motion in limine to exclude Brantley’s testimony that the crime scene was staged or orchestrated. The defense reasoned that Brantley’s opinion had no basis in a scientifically valid methodology that has gained general acceptance in a relevant scientific community, the opinion was not within the scope of his special knowledge, skill, experience, or training under K.S.A. 60-456(b)(2), and his opinion would not be helpful because it was within the jury’s realm of experience and common knowledge to assess the photographs of the crime scene and decide if it had been staged. During arguments on the motion, defense counsel conceded to the trial court’s ruling that Brantley’s testimony was not subject to the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The trial court denied the motion, reasoning:
“THE COURT: Having considered his testimony at the prehminary hearing, it is the Court’s opinion that the factual issues with respect to the staged crime scene are such that they are beyond the scope of common experience of most people, and I think it would be of an aid to the jury to have testimony on this. His testimony and expert opinions are pure opinion. I don’t believe these are subject to Frye standards. There is no scientific or any testing that would be subject to the Frye doctrine as I recall his testimony. It is just—
“THE COURT: I think it is a matter of his application of his specialized training to the facts and the opinions that the offers of the pure opinion kind. So I think it meets the standard under our rule to allow expert opinion of that kind. He, of course, will be tested by cross-examination and counsel has leeway in rigorous examination.”
On appeal, the defendant takes issue with the following exchange which took place during direct examination of Brantley:
“Q. What is meant by personal cause homicide? What is meant by that?
“A. Well, personal cause homicide is basically a homicide where the victim is the focus of the offender, could be motivated by anger, revenge, financial gain, or the removal of an obstacle to a goal.
“Q. And how do you attach that personal cause homicide label to this case? Is there such a situation going on here?”
The defense objected, arguing that Brantley was only qualified to talk about staging and not about motive. The State agreed to move on to another area but then immediately asked, “Based upon your expertise and your understanding of this crime scene what appears to be the primary motive of the offender in this instance?” The defense raised the same objection, which was overruled by the trial court. Brantley responded:
“A. As I said earlier, what’s the main focus here? For us in the beginning was do we have a burglary that’s gone bad and a burglary that started out being motivated by financial gain or the theft of property, or do we have a personal cause homicide, once again where the victim was the focus of the offender’s interest. Clearly, the level of violence and the other activity within this residence is inconsistent with a burglary for financial gain or the acquisition of property, but it is consistent with a personal cause homicide. Again, the level of'violence goes way beyond [what would be necessary] to commit a burglary or even escape if you are confronted by the occupants or homeowner and that more than anything goes right to the motive here.”
The defendant acknowledges that trial counsel conceded at the motion hearing that Brantley’s testimony was pure opinion as it related to the staging of a crime scene and was not subject to Frye. However, she contends the issue is bifurcated and that the trial court did not consider whether Brantley’s testimony relating to motive was subject to the Frye test. In the alternative, she contends the testimony did not bear sufficient indicia of reliability.
The admissibility of expert testimony is subject to K.S.A. 60-456(b), but the Frye test acts as a qualification to the K.S.A. 60-456(b) statutory standard. Frye is applied in circumstances where a new or experimental scientific technique is employed by an expert witness. Frye requires that before expert scientific opinion may be received into evidence, the basis of the opinion must be shown to be generally accepted as rehable within the expert’s particular scientific field. See Kuhn v. Sandoz Pharmaceuticals Corp, 270 Kan. 443, 454, 14 P.3d 1170 (2000).
The Frye test does not apply to pure opinion testimony, which is an expert opinion developed from inductive reasoning based on the expert’s own experiences, observations, or research. The validity of pure opinion is tested by cross-examination of the witness. See Kuhn, 270 Kan. at 457. The distinction between pure opinion testimony and testimony based on a scientific method or procedure is rooted in a concept that seeks to limit application of the Frye test to situations where there is the greatest potential for juror confusion. Kuhn, 270 Kan. at 460.
“The distinction between pure opinion testimony and testimony relying on scientific technique promotes the right to a jury trial. Judges generally are not trained in scientific fields and, like jurors, are lay persons concerning science. A Kansas jury has a constitutional mandate to decide between conflicting facts, including conflicting opinions of causation. Kansas Constitution Bill of Rights, § 5; see K.S.A. 1999 Supp. 60-238. The district judge under K.S.A. 60-456(b) controls expert opinion evidence that would unduly prejudice or mislead a jury or confuse the question for resolution. Cross-examination, the submission of contrary evidence, and the use of appropriate jury instructions form a preferred method of resolving a factual dispute.” 270 Kan. at 461.
While the admission of expert testimony is subject to an abuse of discretion standard, the determination of whether the Frye test was correctly applied is subject to de novo review. Kuhn, 270 Kan. at 456.
The defendant argues Brantley’s testimony regarding the motive behind the staged crime scene was scientific expert testimony which was not generally acceptable within the scientific community under Frye. In the alternative, she contends this type of behavioral analysis does not bear sufficient indicia of reliability. With little argument, the defendant cites State v. Stevens, 78 S.W.3d 817 (Tenn.), cert. denied 537 U.S. 1115 (2002). In that case, the Tennessee Supreme Court held an expert FBI agent could testify about the staging of the crime scene but prohibited him from testifying about the probable motive of the criminal by analyzing the evidence found at the crime scene. Although this testimony was based on nonscientific specialized knowledge based on the expert’s experience, the court found that it still must meet the fundamental requirements of relevance and reliability, as described in McDaniel v. CSX Tramp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 [1993], and its factors).
The Tennessee court looked at these Daubert factors, the expert’s qualifications for testifying on the subject at issue, and the straightforward connection between the expert knowledge and the basis for the opinion and concluded that the trial court properly excluded such testimony. Relevant to this case, the court explained:
“This type of crime scene analysis, developed by the FBI as a means of criminal investigation, relies on the expert’s subjective judgment to draw conclusions as to the type of individual who committed this crime based on the physical evidence found at the crime scene. Although we do not doubt the usefulness of behavioral analysis to assist law enforcement officials in their criminal investigations, we cannot allow an individual’s guilt or innocence to be determined by such ‘opinion evidence connected to existing data only by the ipse dixit’ of the expert. Essentially, tire jury is encouraged to conclude that because this crime scene has been identified by an expert to exhibit certain patterns or telltale clues consistent with previous sexual homicides triggered by ‘precipitating stressors,’ then it is more than likely that this crime was similarly motivated. [Citation omitted.]” 78 S.W.3d at 835-36.
In contrast, similar expert testimony was admitted in Simmons v. State, 797 So. 2d 1134 (Ala. Crim. App. 1999). In that case, the Alabama Criminal Court of Appeals held that an FBI agent’s testimony that the crime scene indicated the offense was sexually motivated was admissible. The court found this was not profile testimony that identified the defendant as having characteristics of one likely to commit the offense but rather was testimony that the physical evidence of the crime indicated certain characteristics of the offense. The court concluded that this testimony was not governed by Frye; rather, crime-scene analysis was specialized knowledge to which the rule governing the admissibility of expert testimony applied:
“Crime-scene analysis and victimology do not rest on scientific principles like those contemplated in Frye; these fields constitute specialized knowledge. Specialized knowledge offers subjective observations and comparisons based on the expert’s training, skill, or experience that may be helpful to the jury in understanding or determining the facts. Crime-scene analysis, which involves the gathering and analysis of physical evidence, is generally recognized as a body of specialized knowledge. [Citations omitted.] Therefore, because crime-scene analysis is not scientific evidence, we conclude that we are not bound by the test enunciated in Frye. [Citation omitted.]” Simmons, 797 So. 2d at 1151.
The court ultimately concluded that the evidence was reasonably likely to assist the jury in understanding and in assessing the evidence, since the matter at issue was highly material, relevant, and beyond the realm of “acquired” knowledge normally possessed by lay jurors. 797 So. 2d at 1156-57.
We distinguish our case from both Stevens and Simmons because they do not recognize pure opinion testimony as discussed by this court in Kuhn. In this case, Brantley s analysis of the crime scene was intertwined with his opinion as to how he characterized the motive of the crime. The crime scene was made to appear as if the victim was killed as part of a burglary gone bad; however, the agent quoted statistics that burglary was a contributing circumstance to murder in only 72 out of over 2 million burglaries in the United States during 2000. The motive of the killer, in a personal cause homicide rather than a burglary, was a relevant factor to consider in determining whether the crime scene was staged. As noted in Simmons, the agent’s testimony was simply that the physical evidence of the crime indicated certain characteristics of the offense. The agent did not note any special scientific technique in making this determination, and it was different from the type of scientific evidence that is usually subject to the Frye test. See Kuhn, 270 Kan. at 460-61. As this pure opinion testimony was part and parcel of the crime scene analysis, we conclude that it was not subject to the Frye test.
Although the defendant challenges the reliability of this evidence, the defendant ignores the trial court’s determination that Brantley’s testimony was pure opinion testimony. It is clear from the evidence presented regarding the crime scene analysis that this testimony was based on specialized knowledge that would not be familiar to a lay person, as it was knowledge which the agent had gained through extensive specialized training through the FBI. Expert opinion testimony is admissible if it aids the jury with unfamiliar subjects or interpreting technical facts or if it assists the jury in arriving at a reasonable factual conclusion from the evi dence. State v. Leitner, 272 Kan. 398, 418, 34 P.3d 42 (2001). Once the trial court makes this determination, the validity of pure opinion testimony is challenged by cross-examination. See Kuhn, 270 Kan. at 456. The trial court did not abuse its discretion by admitting this testimony.
6. Tudicial Misconduct
As discussed previously, Nancy Pratt testified for the defense that J.S. called her the day after the victim was found dead and told her about the murder before that information had been made public. J.S. subsequently told-Pratt conflicting accounts of when J.S. had last seen the victim alive. On cross-examination, the following exchanges occurred between the judge, the witness Pratt, and a spectator (Pratt’s daughter) in the gallery:
“Q. [Prosecutor]: He had a couple different attorneys, didn’t he?
“A. [Pratt]: I believe so.
“THE COURT: Excuse me. Excuse me. Ma’am, if you [the spectator] want to testify in the case I’m sure the defense lawyers will give you the opportunity, but you’re not going to communicate with the witness.
“SPECTATOR: I’m not communicating.
“THE COURT: You are and I’m not—
“A. [Pratt]: Let me answer the question.
“THE COURT: I’m not going to tolerate it. If you do it again, you’re out of my courtroom.
“SPECTATOR: I’U just get out. This—
“THE WITNESS: She was—
“THE COURT: She was communicating with her.
“THE WITNESS: I wasn’t communicating. She got it all—
“TPIE COURT: We are going to take a recess for about 10 minutes.”
During the recess, the witness Pratt repeatedly told the court that the spectator was her daughter and she was not doing anything, but the judge responded that he did not want to talk to Pratt, told her to be quiet, and threatened her with contempt. The spectator, Abby Pratt, was brought back into the courtroom and repeatedly told the court that her intentions were not to communicate with her mother, but the judge insisted that she was communicating with the witness and warned her that he did not like her attitude and that she could be put in jail. Defense counsel explained that Abby was holding her mother’s car keys and Pratt was concerned that Abby would leave with the keys.
Defense counsel argued that when Pratt was on the witness stand and denied that she and her daughter were communicating and the court took issue with that statement in front of the jury, it was “almost a comment on credibility from the Court to the jury . . . against her and she loses.” The court advised that it would give a limiting instruction and denied the defendant’s motion for mistrial because no prejudice had been shown. Upon the jury’s return, the judge stated: “Ladies and gentlemen, let me just briefly advise you that the discussion the Court had with the member of the galleiy previously is not a matter for your concern. It should not affect the issues in tire case, and you should disregard it for your purposes here as factfinders.”
At trial, the defense took issue with the judge’s comments as part of its motion for mistrial, which is reviewed under an abuse of discretion standard. See State v. Abu-Fakher, 274 Kan. 584, Syl. ¶ 7, 56 P.3d 166 (2002). In her posttrial motion and on appeal, the defendant argues that the trial judge’s remarks prejudiced her right to a fair trial, an issue which is subject to unlimited review. The party alleging judicial misconduct bears the burden of showing his or her substantial rights were prejudiced. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002). Furthermore,
“[a]llegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. Mere possibility of prejudice from a judge’s remark is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial. [Citations omitted.]” 274 Kan. at 118.
The defendant argues that the trial court’s comments to the spectator and its contradiction of the witness’ statement in the presence of the jury cast doubt upon Pratt’s credibility and prejudiced the substantial rights of the defendant. She reasons Pratt provided important testimony that another person had knowledge of the murder before that information had been released to the public. The defendant contends that the comments were even more egregious because the court stopped the entire progression of the trial and had a heated discussion with the spectator before contradicting the witness. She alleges the manner in which tire court handled tire situation reflected negatively on her defense and notes that the hmiting instruction did not refer to the court’s comments to the witness.
Although the exchanges between the judge, the witness, and the spectator became more heated after the jury was excused, careful review of the relevant exchange that occurred in front of the jury reveals that while the judge clearly contradicted the credibility of tire spectator, tire judge did not contradict the witness. Pratt interjected herself into the exchange between the judge and the spectator and only got out, “She was — when the judge said, “She was communicating with her.” The defendant has acknowledged that “she” refers to the spectator. The judge’s response was not a contradiction. The witness, not tire judge, then pressed the issue and argued, “I wasn’t communicating. She got it all — ,” before the judge announced a recess.
When considering allegations of judicial misconduct, “[w]here a construction can properly and reasonably be given a remark which will render it unobjectionable, the remark will not be regarded as prejudicial.” State v. Plunkett, 257 Kan. 135, Syl. ¶ 1, 891 P.2d 370 (1995). As demonstrated above, the trial court’s remarks can clearly be construed as referring to the spectator rather than Pratt’s credibility. As tire trial court did not make any comments in front of the jury that reflected negatively on the witness’ credibility, no hmiting instruction on this issue was required. Further, we think it very likely that the jury assumed that the limiting instruction given covered the brief interjections by Pratt during the exchange between the judge and the spectator.
While the better practice would have been for the trial court to dismiss the jury as soon as the spectator disagreed with the court, this error alone did not rise to the level of prejudicing the defendant’s substantial rights, especially when a limiting instruction was given and the judge’s comments had nothing to do with any evidence or testimony in the case. See Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975) (finding substantial rights of party not violated by judicial misconduct in part because jury was warned not to consider such remarks in reaching its decision). We conclude that the trial judge did not deny the defendant a fair trial by those comments.
7. Character Impeachment
The defendant argues the trial court erred by permitting the State to cross-examine Nancy Pratt regarding specific instances of her character relating to truthfulness and her alleged litigiousness.
During cross-examination, the State elicited testimony from Pratt about the details of a pending lawsuit she had filed against J.S. with whom she had a previous relationship. The State asked Pratt if she had made accusations against two different ex-husbands concerning physical abuse and threats. It pointed out that she had filed two separate protection from abuse petitions which had not been supported by a preponderance of the evidence in an attempt to draw an analogy that she made serious allegations against men that she had been previously involved with which were untrue. Defense counsel did not object to this line of questioning.
Following the incident with the spectator described in the previous issue, the State asked Pratt if she had granted J.S. a power of attorney during her second divorce proceedings. The State offered evidence of correspondence she had written to District Judge Larry McClain during the divorce indicating that she had made such an appointment. The State asked if she had filed a petition to have her husband held in contempt of court indicating that he had violated the conditions of a no-contact order and setting out J.S.’s name in support of her contentions. The State asked if Judge McClain had heard the motion for contempt and found against her. At this point, defense counsel objected, and the following exchange took place before the objection was overruled:
“MR. ROGERS [Defense counsel]: Your Honor, might conceivably go to this witness’ credibility when these allegations were made and [J.S.] was listed as a potential witness. Certainly does not have anything to do with her credibility in this case or anything else what Judge McClain decided on some pleading and some unrelated case.
“MR. GUINN [Prosecutor]: Judge, I think it has every bearing. She is suggesting that [J.S.] somehow is involved in this murder. And the fact that she used him, as giving him the power of attorney, and has indicated he is going to support her allegations in the contempt proceeding against her husband in the State’s view suggests that she is not credible in terms of suggesting [J.S.J’s involvement in this case.
“MR. ROGERS: What does that have to do with Judge McClain’s?
“THE COURT: I think it impacts credibility. Her credibility is fair game.
“MR. ROGERS: All the — with regard to Judge McClain’s ruling, he found inferentially, inferentially found. Maybe he found her not to be a credible witness. And that is improper to show this witness was shown not to be believed in some other case. We can’t cross-examine every police officer that testifies for State in this case where the defendant was acquitted.”
The trial court overruled the objection. On further cross-examination, Pratt explained that the motion for contempt in her divorce proceeding was never heard and the judge dismissed the case before it came before him.
As noted by the State, the defense failed to object to virtually any of the testimony that it takes issue with on appeal. Without a contemporaneous objection, these character issues were not properly preserved for review. See State v. Clemmons, 273 Kan. 328, 344-45, 45 P.3d 384 (2002). As demonstrated above, the only issue preserved for appeal was whether the trial court erred by permitting the State to attack her credibility by asking whether Judge McClain denied her motion for contempt in her divorce proceeding.
The defendant argues the State’s use of a specific instance of Pratt’s conduct from a previous court case to impeach her character was prohibited by K.S.A. 60-422, which provides in relevant part:
“As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; [and] (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
In State v. Smallwood, 223 Kan. 320, 326-27, 574 P.2d 1361 (1978), the defendant sought to attack a witness’ credibility by cross-examining him about his testimony under oath at two preliminaiy hearings where he admitted that he had not told the truth. In interpreting K.S.A. 60-422(c) and (d), this court held:
“[A] witness’ credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness’ past conduct. [Citations omitted.] Since the two episodes concerning [the witness’] prior testimony were nothing more than prior specific instances ofhis conduct, the trial court properly prevented the appellant from inquiring about them on cross-examination by applying the exclusionary rule provided in K.S.A. 60-422(d).” 223 Kan. at 326-27.
In this case, Pratt’s allegations in a prior contempt proceeding which were never proven to be true constituted a specific instance of conduct that the State improperly used to impeach her credibility. The trial court abused its discretion by admitting this line of questioning.
However, our review of the admission of evidence in this case is'further subject to a harmless error analysis. No error in either the admission or the exclusion of evidence is a ground for granting a new trial or for setting aside a verdict unless the refusal to take such action appears inconsistent with substantial justice. K.S.A. 60-261; State v. Villanueva, 274 Kan. 20, 31-32, 49 P.3d 481 (2002).
In response to the improper questioning, Pratt testified that the contempt proceeding was dismissed before she had an opportunity to present her case or say anything to Judge McClain. Pratt’s response prevented the State from suggesting that her testimony in this case was not credible since the other court had not found Pratt not credible. Thus, it is unlikely that this line of questioning about her previous contempt proceeding being dismissed had much effect on her credibility, especially in light of the much more damaging testimony that Pratt had ended a relationship with J.S. and was currently involved in a lawsuit with him. Further, we note that the bulk of the evidence supporting the defendant’s conviction was not provided by Pratt, and attacking the credibility of her testimony does not diminish all of the other relevant evidence. See State v. Cordray, 277 Kan. 43, 58, 82 P.3d 503 (2004). Although the trial court abused its discretion by admitting this character testimony, we conclude that the error was not inconsistent with substantial justice, did not affect the substantial rights of the defendant, had little, if any, likelihood of changing the results at trial, and was thus harmless beyond a reasonable doubt.
8. Testimony Regarding Cuts on the Defendant’s Hands
On direct examination, Detective Hohnholt testified that she observed several cuts on the defendant’s hands during the early morning hours after the victim’s body was found. The State asked if they appeared to be recent or fresh cuts, and she replied, “I didn’t personally get close enough to tell, but they appealed] to be recent.” Defense counsel said, “Object to that. And she couldn’t tell, how does she get to give opinion.” The court overruled the objection, telling defense counsel that he could cross-examine the witness.
On cross-examination, the detective indicated that the defendant had told her these injuries were caused when she was sanding cabinet doors and other things she was working on at the new house. In a subsequent interview, the defendant told the detective that she cut herself with a razor blade in a failed suicide attempt. Defense counsel asked if they were fresh bleeding cuts, and tire detective responded, “I did not see any blood. But, again, I was close enough to observe them, but I did not look real close up at the hands.”
The defendant argues the trial court abused its discretion by permitting Hohnholt to testify that the cuts on the defendant’s hands appeared recent because an inadequate foundation had been laid that she was qualified to give such testimony. The State cites authority that a witness need not be an expert on blood in order to testify that fresh marks and spots on the defendant’s hands and clothing were caused by blood. See Lightner v. State, 195 Ala. 687, 71 So. 469 (1916).
As evidence that the defendant had cuts on her hands was clearly relevant, our first consideration when examining appellate challenges to the admission of evidence, this court moves on to consider whether the admission of such evidence constitutes an abuse of discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. See State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004); State v. Kendall, 274 Kan. 1003, 1012, 58 P.3d 660 (2002).
K.S.A. 60-456(a) provides that a nonexpert witness may testify to his or her opinions or inferences that the judge finds “(a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.” K.S.A. 60-456(b) provides that if the witness is testifying as an expert, his or her opinions and inferences are limited to those that the judge finds are “(1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
It should first be noted that defense counsel did not object to the testimony on foundation grounds; rather, the defendant was objecting on the grounds that the detective could not get close enough to tell if the cuts were recent. “A defendant may not object to the introduction of evidence on one ground at trial and then assert a different objection on appeal. [Citation omitted.]” State v. Edwards, 264 Kan. 177, 199, 955 P.2d 1276 (1998). Nevertheless, we will consider the issue.
The defendant relies upon State v. Loudermilk, 221 Kan. 157, 163, 557 P.2d 1229 (1976), in which a detective testified that he observed what he believed were “needle marks” on the defendant’s arms and opined that some of the marks were “fresh tracks.” He had no medical training but had read material provided to law enforcement officers by the Bureau of Narcotics and Dangerous Drugs, had worked many heroin cases, had been an undercover agent for 2 years, and had observed similar marks on the arms of 40 to 50 people. On appeal, this court found the “expert” opinion testimony was proper, reasoning:
“Here the witness testified to what he observed and little more. Whether a small wound is a cut or a puncture, and whether it is old or new, would not appear highly technical. Be that as it may, the witness had some experience and training in the area about which he was testifying and we cannot say that the trial court abused its discretion in the admission of the testimony.” (Emphasis added.) 221 Kan. at 163.
The defendant highlights the fact that the Loudermilk court deemed it necessary to find the proper foundation for the detective’s testimony had been laid, despite its finding that the determination of whether a cut is old or new is not highly technical. However, it is important to note that the Loudermilk court may have gone on to make this determination because evidence of the detective’s expert qualifications had been presented to the trial court. In this case, as the defendant did not object on foundation grounds, the State never identified whether it was seeking to offer the detective’s opinion as expert or lay opinion and no foundation for expert opinion was presented. The defendant assumes that the testimony was offered as expert opinion in arguing that it was not within the scope of the special knowledge, skill, experience or training possessed by the detective. See K.S.A. 60-456(b)(2).
However, by way of comparison, we have found it was acceptable for an officer to offer either lay or expert opinion testimony under K.S.A. 60-456 that someone appeared to be intoxicated. See Kendall, 274 Kan. at 1013. In insanity cases, lay testimony was permissible concerning the defendant’s sanity at the time of committing the crime if the opinion was rationally based on thé witness’ perception and was helpful to a clearer understanding of his or her testimony. See State v. Alexander, 240 Kan. 273, 274, 729 P.2d 1126 (1986); State v. Shultz, 225 Kan. 135, Syl. ¶ 1, 587 P.2d 901 (1978) (Nonexpert witnesses who are shown to have had.special opportunities to observe may give opinion evidence as to sanity.).
If lay opinion testimony can be given as to observing signs of something more subjective such as intoxication or sanity, it reasonably follows that testimony as to whether a cut appears to be fresh or healed is something that a nonexpert witness who observed the wounds could describe since the determination of whether a cut appears to be fresh or healed is not highly technical. See Louder-milk, 221 Kan. at 163. Therefore, we cannot say that no reasonable person would have admitted this testimony, and the trial court did not abuse its discretion by its admission of this evidence.
9. Cumulative Trial Error
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Plaskett, 271 Kan. 995, Syl. ¶ 4, 27 P.3d 890 (2001). No prejudicial error may be found based on cumulative error if the evidence is overwhelming against the defendant. State v. Hebert, 277 Kan. 61, 106, 82 P.3d 470 (2004).
The defendant argues that the collective errors committed by the trial court denied her the right to a fair trial. Based on the above analysis, we conclude the trial court committed error by excluding Pratt’s specific testimony about J.S.’s conflicting stories as inadmissible hearsay and by allowing improper impeachment of Pratt’s credibility. However, the defendant did not properly preserve the K.S.A. 60-455 issue for appeal, and the errors surrounding Pratt’s testimony constituted harmless error as discussed above.
Nevertheless, we conclude that the evidence presented at trial makes it unlikely that those errors had any effect on the outcome of the trial. The evidence showed that the residence had been deliberately staged to look like a burglary; that DNA testing definitively placed the defendant’s blood at the crime scene, near the murder weapon, on the dryer, and in her car; that she had fresh cuts on her hands when interviewed by police; and that the couple had a history of marital discord often related to finances, where the defendant was portrayed as “a Jekyll and Hyde.” In light of this overwhelming evidence, the defendant was not denied a fair trial based on these harmless errors.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
Durayl Tyree Vann petitions this court for review of the Court of Appeals’ decision affirming his convictions of one count each of attempted first-degree murder, attempted second-degree murder, unlawful possession of a firearm, and criminal damage to property, and three counts of aggravated assault in State v. Vann, No. 91,214, unpublished opinion filed May 27, 2005. He contends the district court’s failure to consider his pretrial motions to discharge counsel and to proceed pro se and the court’s failure to give a unanimity jury instruction constituted reversible error. We reverse and remand based upon the trial court’s failure to consider defendant’s motion to proceed pro se. We also note that the district court, based upon the record, should have inquired as to defendant’s allegations that a conflict existed between himself and his attorney.
On the day in question, 16-year-old Dai-Mondd Jones (Jones) worked as a cashier in a party shop (convenience store) with an adjoining liquor store owned by Emzley Donnell, Jr., a.lca. Beaver (Donnell). That morning, a young man ran into the party shop and got behind the counter, saying, “[Djon’t let them get my money,” “They going to kill me,” and “[Tjhey going to rob me.” The defendant Durayl Tyree Vann and another individual had chased the young man into the store and pounded on the counter. Jones told the defendant not to beat on the glass, and the defendant asked Jones if he wanted to fight. Donnell came over and let the young man leave through the liquor store. Donnell grabbed the defendant when he started beating on the counter again, pushed him out of the store, and told him not to come back. Donnell testified that the defendant was saying things like, “I kill you,” “I blow you,” and “I beat you.” After Donnell threw the defendant out, the defendant saw the young man he had been chasing and ran after him.
The defendant returned to the party shop and broke a glass window with his fist. Donnell ran after him but the defendant got away. The defendant returned three or four more times that morning, and Donnell repeatedly chased him off. Donnell called the police and went home to retrieve his gun, and upon his return he saw the defendant coming toward his store with a baseball bat. Donnell chased the defendant and shot at him, and the defendant ran off. The police arrived at that point and took a report.
Donnell left the store around 5 p.m. Around 7:00 or 7:30 p.m., Norris Brownlee came into the liquor store and told liquor store employee Rick Collins that the defendant had talked about coming to the store and robbing and shooting the owner (Donnell) earlier that evening. Collins called Donnell and told him about the threat, and Donnell arrived 10-15 minutes later.
About 8 p.m. that evening, the defendant came into the party shop with his head down and holding a shotgun. The defendant cocked the shotgun, pointed it through the glass toward Jones, and said, “[Ajll ya’ll going to die.” Jones ran and dove through the door to the liquor store yelling, “Beaver, get down, he got a gun.” As he went through the door, Jones heard a shot fired, and he heard additional shots, although he could not say how many.
Upon hearing Jones hollering, Donnell, who was in the liquor store, grabbed his gun and ran through the doorway into the party shop. He heard a gunshot and saw the defendant running toward the counter with a gun. Donnell shot back at the defendant and said, “[Y]our ass is mine now.” The defendant hid in the store and Donnell tried to take another shot at him, but the gun jammed and did not fire.
Mae Seahom, who was working as a cook at the convenience store, ran into the back storage room when she saw the defendant come into the store with the gun. She heard two or three shots, one of which shattered the window in front of the cook’s counter inside of the store. Collins was in the liquor store when he heard the first shotgun blast. He ran back to the storage area, heard three more shots, and then heard a second shotgun blast.
Lamont and Tonia Holmes were customers in the store at the time of the shootings. Tonia testified that she heard a voice say, “[Wjhat’s up now, nigger, what you going to die.” She heard what sounded like an explosion, and she and Lamont got down on the ground. She heard a gun cock and then she heard another shot. She heard Donnell’s voice coming from the other side of the store, and then she heard and felt a gun discharge by her leg as someone was leaving the store. Lamont echoed these same facts at trial.
The defendant was taken to the hospital by a family friend who lived near the store. He testified that the defendant had a gunshot wound to the leg. At the hospital, a police officer observed that the defendant had a large chunk missing from the shin of his right leg and his large toe was almost blown off.
The police investigation of the crime scene suggested that three shots had been fired, one from the handgun, which went through a post into the wall, and two from the shotgun, based on two shotgun shell casings, the broken glass, and the hole in the floor. There was a shotgun blast in the tile floor with blood around it, and blood that trailed on the floor. The DNA profile of the blood samples taken from the store matched the defendant’s DNA.
After his conviction by a jury, the defendant’s motion for new trial was denied, and he was sentenced to a controlling term of 312 months’ imprisonment. The Court of Appeals affirmed his convictions on appeal in State v. Vann, No. 91,214, unpublished opinion filed May 27, 2005. This court granted the defendant’s petition for review, which claimed that the district court erred in failing to consider his pro se motions to discharge counsel and to proceed pro se and in failing to give a unanimity jury instruction.
District Court’s Failure to Address Pro Se Motions
The court appointed David Reed to represent the defendant on August 22, 2002. On October 22, 2002, the defendant filed a pro se “Motion for Relief of Court Appointed Counsel” arguing: (1) that the attomey/client relationship had “deteriated” [sic] and “gotten off to a wrong start,” leaving the defendant with no confidence in his counsel’s representation; (2) that counsel had breached the duly and obligation owed to the defendant by failing to protect his interests and defend him with the required professional skill and energy needed; (3) that a conflict of interest existed between the defendant and counsel based on the reasons listed and his letters to counsel which were never answered; and (4) that his constitutional rights to effective assistance of counsel would be violated if Reed continued as his counsel. The defendant did not serve Reed with a copy of this motion, nor was it addressed at the preliminary hearing on October 30, 2002.
On October 31, 2002, the defendant sent a letter to the clerk of the district court inquiring about his motion for relief of court-appointed counsel that he had filed “which has not been put to use.” The letter stated that he “would like to fire” Reed and wanted Reed “terminated off of my case,” summarized the claims set forth in his motion, and asked why he had not received a new attorney. A handwritten note at the bottom of the letter stated: “We filed your motion for new attorney on 10-22. You were in court yesterday, but we don’t know if you discussed this or not. Only the Judge can malee a change.”
On November 6, 2002, the defendant filed three pro se motions to suppress, a motion for discovery, a motion for writ of habeas corpus, and a motion to proceed pro se. The latter motion asked the court that he be able “to proceed as pro se and retain the attorney as consultant in an advisery [sic] capacity.”
Wyandotte County District Judge J. Dexter Burdette sent Reed a letter dated November 7, 2002, which provided in relevant part:
“Attached please find correspondence forwarded to this office from your client, Mr. Vann. Would you please contact your client and explain to him that this Court does not entertain motions filed by defendants when they have an attorney. These motions should be filed by their attorney when deemed appropriate.
“After consulting with your client, if it is determined that you desire a hearing on this matter, contact my office and one will be scheduled.”
The only attachment to this letter in the record is the defendant’s October 31, 2002, letter to the clerk of the district court, which identified defendant’s contentions regarding his conflict with counsel and his desire that a new attorney be appointed.
On the first day of trial, the prosecutor reminded the court that the defendant had filed pretrial motions. The trial judge responded that he ordinarily did not hear pro se motions when the defendant has representation; however, if the defendant wanted to talk them over with his attorney and have him bring them before the court, he would hear them. The court asked the prosecutor what the motions were, and he replied: “They’re all bare bones motions to suppress any blood evidence, witness testimony, I mean, things that don’t make any sense to the State, Your Honor.” The judge responded: “I see them in the file and I see that Judge Burdette wrote him concerning them, . . . and that Mr. Reed has in fact filed similar motions in this case, which I assume have been heard. Have your motions all been heard for discovery?” Reed answered, “Yes, Your Honor,” and stated that he did not have any more motions. The defendant did not say anything to the court regarding his motions at this time.
The defendant first raised the issue of his pro se motions for new counsel before the court at the motion for new trial hearing:
“THE DEFENDANT: . . . Furthermore, Your Honor, I would like to address to the Court about a motion that was filed October 22 in which this motion was filed for relief of court-appointed counsel, Mr. David Reed. I can get this out of here for you. Here it is, Your Honor. But for the last four months, Your Honor, I have been trying to get this man dismissed from this case due to the irreconcilable differences that cannot be compromised, due to the fact of the conflict of interest. I believe that this man did not represent me with the proper representation when it came to trial. I don’t know how this goes, Your Honor, but this motion was filed and yet it was not entertained. And I can’t go to trial.
“THE COURT: We took up pretrial motions the day of trial. If you- had a problem you should have brought it up at that time.
“THE DEFENDANT: I was informed that it was not in my best interests to do that.
“THE COURT: Well, but the motion is filed. After we go to sentencing, Mr. Vann, I’ll appoint the appellate public defender to represent you on your appeal. And you won’t have Mr. Reed anymore. Mr. Reed is perfectly competent to handle your sentencing.
“THE DEFENDANT: There’s no way I could get a different attorney?
“THE COURT: I told you when the — after sentencing I will appoint the appellate public defender to handle your appeal. Mr. Reed is competent to handle your sentencing.”
At sentencing, the defendant again brought up the issue of his pro se motion for new counsel:
“Then I have a motion that was filed about the ineffective assistance of counsel which was filed October 22.1 also have letters here to Kathleen Collins complaining about it. Then she told me to bring it up in the court. And I brought it up to Judge Burdette. He said he wouldn’t entertain the motions unless it was filed by my attorney.
“And I was about to fire my attorney so I was forced to go to trial due to — you know, we have a conflict of interest between me and my attorney, which I feel, hey, that's a violation right there. How can I have a fair-trial if I have somebody not defending me to -the best of their ability, or representing me to the best of their ability?”
The district court ignored defendant’s questions and proceeded to sentencing.
Before the Court of Appeals, the defendant argued the district court erred in refusing to consider his motions to discharge counsel and to allow him to proceed pro se. The panel rejected this argument, reasoning:
“Vann’s claim of a conflict of interests was contained in a handwritten pro se motion filed before his preliminary hearing. Pie had multiple opportunities thereafter to bring it to the court’s attention but failed to do so. The trial court’s duty to inquire into a claimed conflict of interests arises only when the court is advised of the claim. When the issue of pro se motions was first raised immediately before trial, Vann stood mute when the State characterized the motions as simply repetitive discovery motions that had already been ruled upon. His posttrial assertion of the motion was simply too late. A defendant cannot lay in the weeds on such a significant issue that should be addressed well before trial and wait until after an unsuccessful trial outcome to raise it for the first time.
“Similarly, Vanris posttrial assertion of his motion to proceed pro se was untimely. As noted in State v. Hollins, 9 Kan. App. 2d 487, 489, 681 P.2d 687 (1984): ‘A defendant can assert the right to self-representation only by waiving the right to counsel, and, unlike the right to counsel, the right to self-representation can be waived by mere failure to assert it.’ Here, Vann apparently considered his motion to proceed pro se as his ‘Get Out of Jail Free’ card. He filed it, failed to serve it on his counsel, failed to seek a hearing, stood silent when the court inquired about unresolved pretrial motions, and waited until after conviction to bring it to the court’s attention.” Vann, slip op. at 7-8.
1. Motion to Discharge Counsel
The defendant first argues the district court erred in refusing to consider his pro se motion for discharge of court-appointed counsel.
“It is the task of the district judge to insure that a defendant’s Sixth Amendment right to counsel is honored. [Citation omitted.]” State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999). “Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.” 266 Kan. at 979 (citing Wood v. Georgia, 450 U.S. 261, 272, 67 L. Ed. 2d 220, 101 S. Ct. 1097 [1981]). Likewise, “where the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated.” State v. Jenkins, 257 Kan. 1074, 1083-84, 898 P.2d 1121 (1995). “A trial court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and client.” State v. Carver, 32 Kan. App. 2d 1070, 1078, 95 P.3d 104 (2004) (citing Taylor, 266 Kan. at 978).
The defendant argues the district court failed to safeguard his Sixth Amendment right to counsel because it was aware of his allegations of a conflict of interest but failed to conduct any inquiry or investigation. He contends the trial court’s refusal to consider his pro se motion because he was represented by counsel was inappropriate because it shifted the decision about whether to pursue the motion to defense counsel. The State responds that the trial court was not made aware of the pro se motion for discharge of court-appointed counsel and motion to proceed pro se, and the defendant waived these motions by failing to bring them to the court’s attention and by acquiescing in his attorney’s actions. It relies upon State v. Boyd, 27 Kan. App. 2d 956, 965, 9 P.3d 1273, rev. denied 270 Kan. 900 (2000), in support of its argument.
In Boyd, the defendant filed a pretrial pro se motion to dismiss counsel. The defendant attended the pretrial motions hearing with counsel, but his pro se motion was not discussed. He argued on appeal that the trial court’s failure to dispose of the motion violated his Sixth Amendment right to counsel, but tire panel rejected this argument, reasoning:
“There is nothing in the record to indicate that Boyd ever objected to the appearance of his trial counsel. Boyd appeared with his attorney at the motions hearing, the jury trial, the motion for new trial, and at sentencing. He had ample opportunity to object to tire presence of his attorney. Also, an issue not presented to the trial court, as is the case here, will not be considered for the first time on appeal.” 27 Kan. App. 2d at 965.
This case is distinguishable from Boyd in that the defendant raised the issue of his pro se motion for new counsel on repeated occasions before the district court. While the defendant failed to raise his pro se motions at the preliminary hearing or at the motions hearing on the first day of trial, the defendant did send the clerk of the district court a letter requesting that his motion for discharge of court-appointed counsel be granted the day after the prehminaiy hearing. Judge Burdette’s knowledge of this motion is evidenced by his letter to defense counsel concerning the defendant’s pro se motions and letter to the clerk seeking to discharge his attorney.
At the pretrial motions hearing, Judge Duncan acknowledged that he had seen the pro se motions in the file and Judge Burdette’s letter, but he focused only on the motions for discovery and did not inquire about the motion or the letter’s allegations of a conflict of interest between the defendant and defense counsel. The judge did not address the defendant or inquire about his motion to dis charge counsel but rather left it up to defense counsel to state whether there were any additional motions. Following trial, the defendant again raised the issue of a conflict of interest between defense counsel and himself at both the motion for new trial and sentencing hearings, and he explained that he had been advised not to bring up the motion at the pretrial motion hearing. Despite these repeated complaints, the district court failed to inquire or conduct any further inquiry, simply telling the defendant that he would receive new appellate counsel following sentencing. As such, Boyd provides little guidance on this issue.
Rather, this case is more analogous to State v. Simpson, 29 Kan. App. 2d 862, 32 P.3d 1226 (2001). In Simpson, Simpson informed the court that he was having “disagreements on certain issues” with his attorney. 29 Kan. App. 2d at 865. Although the trial court allowed Simpson to explain why he believed a certain piece of evidence should have been admitted, the trial court did not ask Simpson whether the evidentiary issue was the extent of his problem. Citing Taylor, the panel found the trial court did not give Simpson an adequate opportunity to explain the perceived problems with his attorney. It found the trial court reasonably should have known that Simpson’s conflict with defense counsel had not been resolved when Simpson announced that he had a question. Rather than addressing Simpson, the trial court swiftly referred him to defense counsel. The trial court’s failure to more fully inquire into Simpson’s alleged problems with defense counsel was an abuse of discretion. 29 Kan. App. 2d at 871-72. Cf. State v. Richardson, 256 Kan. 69, 82, 883 P.2d 1107 (1994) (inquiry into conflict of interest was not insufficient where the trial court asked the defendant to explain why he was unsatisfied with his counsel and afforded the defendant and counsel time to try to come to an understanding so the attorney-client relationship could be maintained).
In this case, the Court of Appeals’ decision rests on the fact that the defendant did not orally assert his motion prior to trial and that his posttrial assertion of the motion “was simply too late.” Vann, slip op. at 8. However, the record demonstrates that the district court was aware of the defendant’s pretrial pro se motion to discharge his attorney and the defendant’s corresponding letter seek ing to fire his attorney prior to trial, despite the defendant’s failure to bring the motion to the court’s attention prior to trial; yet, the court conducted no inquiry into the matter. Likewise, while the timing of the defendant’s decision to raise the issue again at tire motion for new trial and sentencing hearings may not have been ideal, this court has specifically rejected a test utilized by the Court of Appeals in previous cases which considers as a factor the “timeliness of the motion” in determining whether the trial court abused it discretion in failing to discharge a court-appointed attorney at the request of the defendant. See State v. Jasper, 269 Kan. 649, 653-54, 8 P.3d 708 (2000). Moreover, the defendant specifically asked for a new attorney at sentencing, but the trial judge brushed this request aside with no inquiry by telling the defendant that he would appoint different appellate counsel following sentencing.
In this case, the district court’s knowledge of the defendant’s pro se motion to discharge his attorney alleging a conflict of interest, followed by the defendant’s corresponding letter referring to the motion, the defendant’s subsequent motion seeking to proceed pro se, and the defendant’s posttrial assertions of a conflict of interest, coupled with the court’s failure to conduct any inquiry whatsoever, constituted an abuse of discretion.
Ordinarily, the appropriate remedy, in the absence of a suitable record on appeal concerning the alleged conflict of interest, is to remand to the trial court for a determination of whether the defendant can “establish that the conflict of interest adversely affected his counsel’s performance.” State v. Gleason, 277 Kan. 624, 653-54, 88 P.3d 218 (2004) (quoting Mickens v. Taylor, 535 U.S. 162, 174, 152 L. Ed. 2d 291, 122 S. Ct. 1237 [2002]). However, our conclusion in the next issue requires that we reverse the defendant’s convictions and remand for new trial.
2. Motion to Proceed Pro Se
The defendant next argues the trial court’s refusal to address his motion to proceed pro se with an attorney as a consultant in an advisory capacity filed prior to trial was a denial of his right to self-representation.
In Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), the United States Supreme Court held that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation. State v. Collins, 257 Kan. 408, 411, 893 P.2d 217 (1995). Additionally, the Faretta Court also noted that a State may appoint “standby counsel,” even over the defendant’s objection, to assist the pro se defendant in his or her defense. 422 U.S. at 834, n.46.
“A criminal defendant who before trial clearly and unequivocally expresses a wish to proceed pro se has the right to self-representation after a knowing and intelligent waiver of the right to counsel. A knowing and intelligent waiver requires that the defendant be informed on the record of the dangers and disadvantages of self-representation. The choice is to be made ‘ “with eyes open.” ’ [Citation omitted.]” State v. Graham, 273 Kan. 844, 850, 46 P.3d 1117 (2002).
“Because die right to proceed pro se is at odds with the right to be represented by counsel, ‘[t]he courts must indulge “every reasonable presumption against waiver” of the right to counsel, and will “not presume acquiescence in the loss of fundamental rights [i.e., the right to counsel].” ’ [Citation omitted.] ‘[U]nlike the right to counsel, the right to self-representation can be waived by mere failure to assert it.’ [Citation omitted.]” State v. Lowe, 18 Kan. App. 2d 72, 74-75, 847 P.2d 1334 (1993).
“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ’harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984); accord Lowe, 18 Kan. App. 2d at 74.
In addition to Faretta and McKaskle, the defendant relies upon Lowe in support of his position. Lowe moved for self-representation on the day of trial. The trial court responded to the motion by inadvertently misstating the law and telling Lowe that he could proceed pro se only if the court found that Lowe would not benefit from a lawyer in the case. The court warned Lowe of the pitfalls of self-representation, encouraged him to retain his attorney, but failed to ask him if he still wanted to proceed pro se. As in this case, the State argued on appeal that Lowe waived his right to represent himself by failing to reassert his right to self-representation and by allowing counsel to continue to represent him when the proceedings continued. The Court of Appeals found that Lowe did not invite counsel’s subsequent participation and, at most, he allowed counsel to continue without reasserting his request to represent himself. The court concluded that when the trial court’s statements and actions were viewed in toto, a danger existed that Lowe understood not only that his request had been denied, but also that there was no possibility the court would allow him to represent himself. 18 Kan. App. 2d at 76.
In this case, we thus consider whether the defendant clearly and unequivocally asserted his right to self-representation prior to trial. The State maintained and the Court of Appeals agreed in this case that the defendant’s failure to serve the motion on counsel, request a hearing, or to raise the issue at the pretrial motions hearing was a waiver of the right to self-representation. We do not agree.
The defendant’s motion “to proceed pro se and retain the attorney as consultant in an adviseiy [sic] capacity” was a clear and unequivocal assertion of the right to proceed pro se prior to trial. While we acknowledge that the defendant had filed other motions requesting the appointment of a new attorney, this did not change the fact that the defendant expressed a desire to proceed pro se. In fact, the existence of these other motions was a greater reason for the court to conduct a further inquiry into the defendant’s position.
Once the defendant asserted his constitutional right to self-representation by pretrial motion, his counsel was advised of the existence of the defendant’s pro se motions by letter from the district court, and the defendant was told by the court that it would not consider motions raised by the defendant himself. The defendant subsequently explained to the court that counsel had advised him against raising his pro se motions. Based on these facts, as in Lowe, a possibility certainly existed at the pretrial motions hearing that the defendant allowed defense counsel to continue representing him because he felt that he had no other choice.
Moreover, the effect of the Court of Appeals’ opinion would be that a defendant would bear the burden of continually reasserting his or her right to self-representation or it is waived. Lowe counsels that where tire defendant allows defense counsel to continue representing him without reasserting his right to self-representation, it does not constitute a waiver of that right. As the district court failed to consider the defendant’s pretrial assertion of his right to self-representation, the conviction must be reversed and the case remanded for new trial. See Lowe, 18 Kan. App. 2d at 79.
Multiple Acts Unanimity Jury Instruction
In the interest of judicial economy, we elect to address the defendant’s remaining argument concerning the district court’s failure to give a multiple acts unanimity jury instruction as this issue is likely to arise again on remand.
The defendant was charged with attempted first-degree murder of Donnell. During closing argument, the prosecutor described the acts it was relying upon for this charge:
“But Mr. Donnell says when he fires that first shot he’s still over in that area and it fires that way. But that first shot is a — is at Dai-Mondd Jones and that’s what the evidence shows. Whether it was a good shot by the defendant or not that’s where it was intended. And it was also intended at Mr. Donnell who he’s summoning to come from the liquor store side. And that’s what the first shot is from. That’s why there’s two Counts, one on Dai-Mondd, and one on Emzley Donnell.
“And the State would submit to you that the evidence shows that obviously he didn’t complete the crime. Why didn’t he complete the crime? Because Mr. Donnell had a revolver and the State would submit to you after he fired the first shot he ran around to the back counter and you’ll see it. He pumped it out to get the next round in. He now has heard Mr. Donnell shoot at him is what the State would submit to you. And whether he’s nervous, excited or whatever, the State would submit to you he shoots himself in the leg and the foot, what Officer Ladish testified that he saw at the hospital.
“. . . And he shot himself there because he didn’t know Mr. Donnell was going to have a gun. He got excited and nervous and boom, shot himself in the leg. Then he realizes that he’s hurt and he has to get out of there. And you know he pumped out the empty shell and the shotgun wad is gone there and that goes to show the attempt. It was just more than mere preparation or mere thoughts.”
The defendant argues for the first time on appeal that the district court should have given a unanimity instruction because multiple acts could have constituted the basis for finding him guilty of the attempted murder of Donnell. Specifically, he contends that the juiy could have found him guilty based upon either the defendant’s first shot in the direction of the liquor store or the (overt) act of pumping out the shell from the shotgun right before the second shot, an accidental discharge, was fired.
“In multiple acts cases, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.” [Citations omitted.]’ ” State v. Stevens, 278 Kan. 441, 452, 101 P.3d 1190 (2004).
In State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001), the defendant was charged with a single count of rape but evidence was presented that the defendant digitally penetrated the victim in the bathroom, pursued her into the kitchen, and digitally penetrated her again. The Kansas Supreme Court adopted a two-step harmless error analysis to be applied when it is contended that a unanimity instruction should have been given:
“In applying a two-step harmless error analysis, the first step is to decide whether there is a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error was harmless beyond a reasonable doubt with respect to all acts.” 271 Kan. 929, Syl. ¶ 3.
Under the facts of Hill, the court concluded that the two acts of penetration were separate incidents of rape. However, the court found there was no possibility of jury confusion where no extrinsic evidence to support the charges existed and the sole issue was the credibility of the victim’s account of the penetrations. As the defendant presented only a general denial of participation in any wrongful conduct, which was rejected by the jury, the court found there was no rational basis by which the jury could have convicted the defendant of one rape and not the other. 271 Kan. at 940.
However, more recently in State v. Kesselring, 279 Kan. 671, 112 P.3d 175 (2005), this court identified a threshold analysis to a multiple acts analysis which incorporates part of the Hill test. In Kesselring, the defendant argued that any one of multiple acts could have constituted the charge of aggravated kidnapping. Citing State v. Staggs, 27 Kan. App. 2d 865, 867, 9 P.3d 601, rev. denied 270 Kan. 903 (2000), we found that “[tjhe threshold question in a multiple acts analysis is whether the defendant’s conduct is part of one act or represents multiple acts which are separate and distinct from each other.” 279 Kan. at 682. In Staggs, the defendant argued he was entitled to a unanimity instruction on his aggravated battery charge where the evidence showed that he both punched and kicked the victim during a fight. The Staggs court held:
“[T]he evidence here supports only a brief time frame in which the aggravated battery occurred. Once defendant initiated the altercation, no break in the action of any length occurred, and the confrontation continued until defendant broke the victim’s cheekbone. Simply put, the evidence established a continuous incident that simply cannot be factually separated. No ‘multiple acts’ instruction was necessary.” 27 Kan. App. 2d at 868.
In applying the Staggs analysis, the Kesselring court quoted from the first step of the Hill analysis regarding factually separate incidents, stating “ ‘[i]ncidents are factually separate when independent criminal acts have occurred at different times or when a late criminal act is motivated by “a fresh impulse,” ’ ” reasoning that “[ajlthough we have previously used this test as part of the harmless error analysis in Hill, it is also an appropriate test for determining the threshold question of whether multiple acts are involved.” 279 Kan. at 683. The court concluded that the kidnapping was a continuous incident that could not be factually separated despite the fact that the event transpired over several hours, the victim was moved from one location to another, and he was momentarily free during an attempted escape. 279 Kan. at 683.
In this case, while not mentioning Staggs or Kesselring, the Court of Appeals panel essentially performed this threshold anal ysis by applying only the first step of Hill in concluding the failure to give a multiple acts instruction was not erroneous:
“Vann’s argument is predicated upon there being two factually and legally separate incidents. There were not. First, the incidents are not legally separate. The court’s instructions did not shift the legal theory from a single incident to two separate incidents. Vann did not present one defense to file first shot and anodier to the reloading in anticipation of the second shot. His argument to the jury relating to this count was directed at the issue of intent and applied equally to die first shot and die reloading:
‘Count 1 charges my client, Durayl Vann, of die attempted murder in the first degree of Emzley Donnell. But I ask you, who was trying to kill whom? . . .
‘Mr. Donnell decides to take matters in his own hands. He runs home and he gets a gun. And he comes back. He sees the defendant walking down the street across the street and what does he do? He shoots. Fie fires. My client taires off running. . . .
‘And with regard to this issue of intent upon Mr. Donnell, let’s take a look a closer look at that. The testimony is that the individual who came into the store witii die shotgun fired, then Dai-Mondd Jones, die clerk, runs in back. Mr. Donnell who is already there comes out, basically loaded for bear. He says, your ass is mine. Who is trying to kill whom? I think that after you carefully consider diat evidence diat you’ll find that diere surely is a reasonable doubt as to whether my client, Mr. Vann, intended to do anytiiing to Mr. Donnell.’
“Nor were the two shots factually separate. It appeai-s from die descriptions of die witnesses that the entire incident took no more tiian a matter of minutes. Vann announced when he arrived that evening diat everyone was going to die. The first shot and die reloading were part of die single transaction to cany out diat expressed design. The reloading after the initial shot was not instigated by a ‘fresh impulse,’ but by die initial impulse diat brought him to the party shop that night. Under these circumstances, there were no legally or factually separate incidents. The failure to give a unanimity instruction was neitiier erroneous nor, under die more stringent standard at play here, clear error.” Vann, slip op. at 11-12.
Thus, in this case, our first inquiry is whether this is truly a multiple acts case which requires a unanimity instruction, i.e., “whether the defendant’s conduct is part of one act or represents multiple acts which are separate and distinct from each other.” Kesselring, 279 Kan. App. 2d 671, Syl. ¶ 5. Kesselring counsels that we look to a portion of the first step of the Hill analysis to make a determination whether the incidents are factually separate. As in Staggs and Kesselring, the defendant’s actions in shooting the first shot and pumping the shotgun to reload are pail of a continuous incident that occurred within only a couple of minutes. They were both performed with the express design announced by the defendant to kill everyone in the party shop. The fact that the defendant encountered return gunfire in resistance did not spark a “fresh impulse” for him to reload the shotgun; rather, the reloading was necessary to carry out his plan to kill everyone.
This case is thus distinguishable from Hill, where the court found two separate incidents of rape occurring within a short period of time, as the defendant in this case could not be charged with two counts of attempted murder of Donnell based on his actions in firing the first shot and reloading the shotgun. Compare State v. Perry, 266 Kan. 224, 229, 968 P.2d 674 (1998) (convictions of attempted murder and aggravated battery were multiplicitous where the victim was beaten and shot because the underlying acts of violence occurred simultaneously or “at approximately the same time and place”), with State v. Fulton, 28 Kan. App. 2d 815, 23 P.3d 167, rev. denied 271 Kan. 1039 (2001) (one continuous incident rather than multiple acts where the defendant cut the victim on the face and then cut him on his chest because it would have been multiplicitous to charge each cutting separately).
We conclude that this case does not involve separate factual incidents; it is not a multiple acts case. Thus, a unanimity instruction was not required. The Court of Appeals’ decision on this issue is affirmed.
Affirmed in part, reversed in part, and remanded for further proceedings.
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The opinion of the court was delivered by
Lockett, J.:
The State appeals the Court of Appeals’ reversal of Green’s conviction for voluntary manslaughter based on the majority of the panel’s conclusion that the evidence was insufficient to support Green’s conviction for voluntary manslaughter as an aider and abetter.
In the early morning hours of June 29, 2002, O.T. Ruffin died after a fight in the parking lot of Harry and Ollie’s bar in Wichita. The events leading up to O.T.’s death began when O.T. bumped into Green’s sister, Latrina Green, on the bar’s dance floor. Latrina was upset and started arguing with O.T. Latrina’s boyfriend, Derrick Henderson, became involved and commenced arguing with O.T. O.T.’s brother, Patrick, stepped in front of O.T., told Henderson that they were not looking for trouble, and attempted to calm Henderson. Henderson would not calm down. A group of Henderson’s friends began crowding behind Henderson. Latrina’s brother, Marshall Green, was one of the individuals that joined Henderson.
O.T. and Patrick were each about 5 feet, 6 inches or 5 feet, 7 inches tall and weighed 170 to 180 pounds. Patrick estimated Henderson’s height at approximately 6 feet, 3 inches and his weight at about 220 to 230 pounds. Concerned about Henderson’s relative size and afraid that the group was going to jump them, Patrick stated to O.T. that it was time to leave. Patrick then grabbed the front of O.T.’s shirt and commenced pushing O.T. backwards through the bar toward the door. Patrick kept himself between Henderson and O.T. The crowd led by Henderson and Green followed O.T. and Patrick to the bar’s front door. When Patrick and O.T. reached the front door of the bar, O.T. stated to the crowd, “I don’t want to fight you all.”
Green, using both of his fists, responded to O.T.’s statement by shoving O.T. out the door. After being shoved outside the door and into the parking lot, O.T. and Patrick started running towards Patrick’s car. Henderson went after O.T., and Green pursued Patrick. A few seconds later, Patrick stopped and looked back. Patrick observed O.T. lying on the ground in the parking lot and several people kicking and stomping on his brother. Patrick testified that when he attempted to go back to help his brother, Green swung at him and prevented him from helping O.T.
A few minutes after Green pushed O.T. outside, a police officer arrived. The officer had been across the street on a domestic violence call and heard neighbors shouting that there was a fight in the bar s parking lot. The officer observed Henderson jumping up and down on O.T.’s back. Green’s sisters became aware of the officer and attempted to pull Henderson off of O.T. Henderson then stepped off O.T. and kicked him one last time before backing away. Green and his girlfriend immediately ran to Green’s car and left. The officer arrested Henderson, both of Green’s sisters, and others. O.T. was rushed to the hospital. Before surgery could be performed, O.T. died from a lack of oxygen to his brain caused by blunt force trauma to his head and chest.
Green spent the rest of the night with his girlfriend. Green dropped her off at her house about 8 a.m. Officers attempted to contact Green at his last known address at approximately 10 a.m, but could not find him. Green missed an appointment with his parole officer on July 1, 2002, and did not contact his parole officer after that date. Neither Green’s sister nor his girlfriend saw Green until after Green was arrested in Los Angeles on December 2, 2002.
After Green was returned to Kansas, he was formally charged with and tried for the second-degree murder of O.T. It is important to note that a jury convicted Green of the lesser included offense of voluntary manslaughter. Green appealed to the Kansas Court of Appeals, arguing that the evidence was insufficient to support his conviction. The Kansas Court of Appeals reversed his conviction. State v. Green, No. 90,912, unpublished opinion dated December 10, 2004. This court granted the State’s petition for review of the Court of Appeals’ decision.
WAS THE EVIDENCE SUFFICIENT TO SUPPORT A CONVICTION FOR VOLUNTARY MANSLAUGHTER AS AN AIDER AND ABETTER?
The State argued to the Court of Appeals that, based on his participation in the death of O.T. Ruffin, the evidence was suffi cient to support Green’s conviction for voluntary manslaughter. A majority of the Court of Appeals reversed Green’s conviction, concluding that, because he was chasing Patrick, Green was not personally involved in the attack on O.T. The majority of the Court of Appeals further concluded that O.T.’s death was not a reasonably foreseeable consequence of a “bar fight, without weapons or premeditated planning of purposeful life-threatening activity.” Green, Slip op. at 14.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005). The jury has the prerogative to determine witness credibility, the weight of the evidence, and any reasonable inferences that may be drawn from the evidence. An appellate court does not reweigh the evidence or reevaluate the credibility of witnesses. All issues of credibility are resolved in favor of the State. State v. Clemons, 261 Kan. 66, 71, 929 P.2d 749 (1996).
K.S.A. 21-3205 provides:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
To establish guilt on the basis of aiding and abetting, the State was required to show that Green knowingly associated with the unlawful venture and participated in such a way as to indicate that he was facilitating the success of the venture. Without other incriminating evidence, mere presence in the vicinity of the crime or mere association with the principals that committed the crime is not sufficient to establish guilt as an aider and abettor. State v. Bryant, 276 Kan. 485, 493, 78 P.3d 462 (2003).
Here, the unlawful venture was the beating that resulted in O.T.’s death. Green asserts that he cannot be convicted as Henderson’s aider and abettor simply because he was in the vicinity of the beating and associated with Henderson, who actually beat O.T. Green argues that there is no evidence that he participated in beating O.T. or encouraged Henderson to beat O.T.
A majority of the Court of Appeals accepted Green’s argument, conducing that Green was involved in “a bar fight with Patrick, not a sustained attack on O.T.” Green, slip op. at 14. However, this conclusion overlooks the applicable standard of review, which requires an appellate court to review the evidence in the light most favorable to the State. See Calvin, 279 Kan. at 198.
An appellate court does not determine whether the evidence is incompatible with any reasonable hypothesis except guilt. That function remains with the jury and the trial court. Rather, an appellate court is “limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt.” State v. Boone, 277 Kan. 208, 217, 83 P.3d 195 (2004). Regardless of whether the evidence supports another theory of the events, an appellate court’s function is to determine whether there is a basis in the evidence to support the jury’s guilty verdict. Boone, 277 Kan. at 218.
Viewing the evidence in a light most favorable to the State, there is evidence that Green facilitated the success of the criminal venture in two ways. First, Green initiated the attack on O.T by pushing O.T. out of the bar and into the parking lot where the beating occurred. Patrick testified that Green pushed O.T. out the door into the parking lot with his fists after both O.T. and Patrick told Henderson, Green, and their other companions that they did not want a fight. Green was the first person to physically contact O.T. Based on that evidence, it was reasonable for the jury to infer that Green’s physical contact encouraged or incited others in the crowd to batter O.T. Second, Green also facilitated O.T.’s beating by preventing Patrick from coming to O.T.’s aid. Green admitted to chasing Patrick. Patrick testified that Green pursued him, swung at him, and prevented him from returning to help his brother. The Court of Appeals’ majority concluded that the evidence did not link Green with O.T.’s beating is in error.
We note that the New Mexico Supreme Court also applied an aiding and abetting theory to a person who prevents another from giving aid. In State v. Ochoa, 41 N.M. 589, 72 P.2d 609 (1937), two defendants, Ochoa and Avitia, were convicted of second-degree murder as aiders and abettors to the shooting death of the local sheriff. Ochoa and Avitia were part of a mob that was attempting to free a prisoner from the sheriff. 41 N.M. at 595. The sheriff was returning the prisoner to the jail following a court proceeding. The jail was down the alleyway from the courthouse. A mob of people formed in the alley to prevent the sheriff s passage with the prisoner. 41 N.M. at 593-94. When Sheriff s Deputy Boggess threw a tear gas bomb into the crowd, shooting broke out. 41 N.M. at 594. Ochoa hit another deputy with a hammer. 41 N.M. at 595. Ochoa and Avitia then beat and kicked Deputy Boggess. While Deputy Boggess was on the ground, the sheriff was mortally wounded by gunfire. 41 N.M. at 596. The jury found that Ochoa’s and Avitia’s actions prevented the sheriff s deputy from coming to the sheriff s aid. The Ochoa court upheld defendants’ convictions for aiding and abetting. 41 N.M. at 599, 601-02.
The principle in Ochoa applies to this case. Green prevented Patrick from coming to O.T.’s aid. When that evidence is viewed in a light most favorable to the State, there is sufficient evidence to support Green’s conviction for voluntary manslaughter based on an aiding and abetting theory.
For his second claim, Green argues that O.T.’s death was not a reasonably foreseeable consequence of simple battery. This argument assumes that bar fights are limited to simple batteiy. The Court of Appeals accepted this argument, concluding that a bar fight is not inherently dangerous. According to the majority of the Court of Appeals, a bar fight without “weapons or premeditated planning of purposeful life-threatening activity” is not per se inherently dangerous. Green, slip op. at 14. In reaching this conclusion, the majority of the Green court observed that, “[considering the number of fatal bar brawls which occur annually in this country, it is curious that none is cited by either party as support for their position and none have yet to be found by the court to help resolve this issue.” Green, slip op. at 12.
These statements demonstrate the focus of the majority of the Court of Appeals on a “bar brawl,” and implies there must be an agreement by both sides to participate in a fight. This focus does not consider the fact that the Ruffin brothers clearly did not want to participate in a fight. Both O.T. and Patrick made their lack of agreement clear by stating that they did not want to fight or become involved in a bar brawl. In addition, there is no evidence that O.T. threw a punch. The majority’s focus on a “bar brawl” does not consider O.T.’s status as a victim rather than a participant. O.T. was kicked and stomped on the head by several individuals while he was lying face down in the bar’s parldng lot. Neither O.T. nor Patrick attempted to fight. Rather, both chose to flee.
The majority agreed with the State that Green was participating in a “venture,” i.e., the crowd action against O.T. and Patrick. Green, slip op. at 12. Without stating which specific crime or crimes, the majority concluded: “[Wjere Green charged with mob action or general violent behavior, he would undoubtedly be guilty.” Green, slip op at 12-13.
In his dissent, Judge Malone agreed with the majority that Green was not responsible for O.T. Ruffin’s death just because Green was involved in the melee. However, he noted, there were two concrete facts in evidence supporting the prosecution’s claim that Green’s actions aided Derrek Henderson in the beating death of O.T. “First, Green pushed O.T. out the tavern door into the parldng lot at a time when O.T. was telling the crowd he did not want to fight. Second, Green prevented Patrick Ruffin from helping his brother by swinging his fists at Patrick in the parking lot.” Green, slip op. at D-l. Judge Malone observed that this evidence supported the prosecution’s claim that Green intentionally aided Henderson in O.T.’s beating. He noted that Green may not have intended for O.T.’s death to result, but this was a reasonably foreseeable consequence of his actions. Judge Malone concluded tire evidence against Green as an aider and abettor was legally sufficient for his culpability in the criminal act to become a jury question and the judge would have affirmed Green s conviction of voluntary manslaughter.
The Green court’s general conclusion that bar fights are not inherently dangerous accepts Green’s assumption that bar fights only involve simple battery. Besides this oversimplification of the nature of bar fights, Green’s argument to this court presumes that conclusion without considering the facts of each case. It is important to note that Kansas law does not support that presumption.
K.S.A. 2004 Supp. 21-3436(b)(6) states that aggravated battery, as defined in K.S.A. 21-3414(a)(1), is an inherently dangerous felony. K.S.A. 21-3414(a)(1) includes any intentional conduct that causes great bodily harm, disfigurement, or death. Kansas courts have defined “great bodily harm” as more than slight, trivial, minor, or moderate harm, that does not include mere bruising, which is likely to be sustained by simple battery. State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001). Except for a few specific injuries that have been declared to be great bodily harm as a matter of law, the question of whether an injury constitutes great bodily harm is a question of fact for the jury to decide. 271 Kan. at 419-20 (referring to gunshot wounds, rape, and sodomy). Thus, if a bar fight involves intentional great bodily harm, it is, by definition, an aggravated battery which is an inherendy dangerous felony.
The Court of Appeals’ broad statement that bar fights are not inherently dangerous is not supported by Kansas law. Depending on the degree of harm involved, there are instances similar to our case, where a bar fight was found to be inherently dangerous. See, e.g., State v. Maxfield, 30 Kan. App. 2d 873, 875-76, 54 P.3d 500, rev. denied 273 Kan. 1038 (2001) (demonstrating that a defendant may aid and abet a death during a bar fight). The dangerousness of the bar fight is determined by the facts of each case. We therefore conclude it is reasonably foreseeable that any level of harm, ranging from a simple battery to death, can result from a bar fight.
Thus, the facts of each case are evaluated to determine whether a bar fight results in great bodily harm. Because that factual determination is within the province of the jury, an appellate court is limited to reviewing the record for evidence to support the jury’s decision. Boone, 277 Kan. at 218. Consequently, an appellate court cannot conclude, as a matter of law, drat all bar fights involve only simple batteiy and are not inherently dangerous.
Though not cited by the parties or the Court of Appeals, a prior Kansas Court of Appeals decision supports the State’s proposition that bar fights without weapons or preplanning that cause death will support a conviction for voluntary manslaughter. See, e.g., Maxfield, 30 Kan. App. 2d 873 (victim died after being chased, falling to the ground, and being hit and kicked in the head and chest by several men in the parking lot of a bar); see also State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999) (victim was killed during a fist fight; Jackson’s conviction for manslaughter was upheld even though his friend fought and lolled the decedent).
Henderson was jumping up and down on O.T.’s back using his full force. The jumping on and kicking of the victim’s head lasted approximately 1 minute. Within that short amount of time, O.T.’s death was assured. O.T. suffered more than slight, trivial, minor, or moderate harm. This beating was not a simple battery, and it invalidated the very basis of Green’s argument. Here, the evidence supports the jury’s conclusion that O.T.’s death during a bar fight was the reasonably foreseeable consequence of an inherently dangerous felony-aggravated battery. Under the circumstances, the majority of the Court of Appeals erred by concluding that a bar fight is not per se inherently dangerous and O.T.’s death was not a reasonably foreseeable consequence of a bar fight.
The evidence, when viewed in a light most favorable to the State, also supports the State’s argument that Green recognized the culpability of his actions regarding O.T.’s death. When tire police arrived at the bar, Green immediately ran to his car and left. He did not check on his sisters or Henderson. Green did not simply flee the bar parking lot. After spending the night with his girlfriend, Green left Kansas. Officers began looking for Green at his last known addresses as early as 10 a.m. on the day of O.T.’s murder. Green failed to show up for an appointment with his parole officer a few days after O.T.’s murder and did not contact his parole officer after that date. Green was arrested in Los Angeles, California, in December 2002 and returned to Kansas.
While Green was hiding out in California, two of his sisters, Derrick Henderson, and another individual were charged with and convicted of O.T.’s death. Derrick Henderson was convicted of second-degree murder. Green’s sister, Latrina, was also convicted of second-degree murder. Green’s other sister, Melissa Stanford, was convicted of voluntary manslaughter, and Green’s friend, Edwuan Askew, was also convicted of voluntary manslaughter.
After he was arrested and returned to Kansas, Green was charged with second-degree murder under an aiding and abetting theory. The jury convicted Green of the lesser included offense of voluntary manslaughter. This court’s review is limited to examining the evidence in a light most favorable to the State to determine if there is evidentiary support for the jury’s verdict. See Boone, 277 Kan. at 217. Following that standard, we find that the record supports the jury’s verdict. We reverse tire Court of Appeals’ decision reversing Green’s conviction and affirm Green’s conviction for voluntary manslaughter.
The decision of the Court of Appeals is reversed, and the judgment of conviction of the district court is affirmed.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Burch, J.:
The proceeding was originally one in the probate court for allowance of a claim against an estate. The claim was based on a- subscription to the endowment fund of Cotner College, at Bethany; Neb. The claim was allowed, and the executors appealed. In the district- court-judgment was rendered for the college, and the executors again-appeal.
The subscription paper was executed and accepted while the college was making a campaign for funds known as the “Cotner crusade,” and reads as follows:
“Cotner College Endowment Fund.
E-I-K 162; Estate Note.
“In consideration of our interest in Christian education and the promises of like tenor and effect made by other subscribers to Cotner College, at Bethany, Nebraska, we hereby promise to pay to said Cotner College the sum of ten thousand dollars ($10,000), upon the following terms and conditions :
“1. This note shall be due and payable out of the proceeds of our estate sixty days (60) after our decease.
“2. It is understood that this note shall bear a rate of interest of none per cent per annum, payable annually from date to Cotner College until we otherwise notify said college in writing.
“3. It is understood and agreed that at any time convenient to ourselves we may pay part or all of this obligation, and receive therefor an annuity bond in the amount of the sum paid; and when said principal sum of ten thousand dollars ($10,000) shall have been paid, we shall have no obligations under this contract.”
“Done at Morrowville, Kansas, this 14th day of April, 1926.
[Signed] W. D. Johnson,
Elva D. Johnson.”
The sole* defense relied on in this court is want of consideration.
Defendants say there was not a scintilla of evidence that the makers of the instrument executed it in consideration of the fact that some other person executed a similar instrument, either before or after execution of the instrument in controversy. This involves a play on the word “consideration.” Continuing the play, it may be observed that want of consideration is an affirmative defense; the instrument declared the makers executed it in consideration of promises of like tenor and effect made by other subscribers; and there was not a scintilla of evidence to show that the recital in the instrument was not true. ' '
From the case of White v. Scott, 26 Kan. 476 (1881), to the case of Thomas County, etc., Ass’n v. Pearson, 124 Kan. 430 (1927), 260 Pac. 623, this court has sustained and enforced subscription contracts in various forms, and there is nothing peculiar about the contract here involved which prevents enforcement according to its terms. In this state there is no limitation on the right of a beneficiary of a subscription instrument to sue the subscribers, and the consideration for the promise of each' subscriber is found in the promises of others. The doctrine may-be sound or unsound, but it is a wholesome one in practice, and the court will not now depart from it.
In this instance the proof was that other subscriptions of like tenor and effect had in fact been made before execution of the Johnson contract, and therefore the Johnson subscription became irrevocably effective from the time the instrument was signed. If the Johnsons had been the first subscribers their promise would have constituted an offer until other subscriptions were made. When made the promises of subsequent subscribers would have rendered the Johnson promise effective from the time the subsequent subscriptions were made. Many subscriptions were in fact made after the Johnson subscription, and some of the subsequent subscribers were informed of the Johnson subscription.
If there had been no campaign for funds, and simply because of the Johnsons’ interest in Christian education they alone had ex ecuted and delivered the instrument, the instrument would have become binding when, depending upon it, the college made expenditures and incurred liabilities for improvement of its facilities for Christian education. The principle is applicable to the subscription which the Johnsons did make.
Defendants contend that expenditures by the college could not make a pledge, designated as one for endowment, enforceable, and that such a pledge would be revocable at any time before payment. Adequate financial endowment renders unnecessary periodical crusades for money. With endowment assured, sufficient to sustain increased equipment, better facilities, and larger faculties, expenditures for those purposes are warranted, and if made, as in this case, the pledge may be enforced.
Defendants assert that the third condition of the instrument was void for uncertainty, and conclude the contract was without consideration. The conclusion is a non sequitur, but beyond that the provision did not relate to obligation to pay but to privilege respecting method of discharging obligation to pay. The privilege was not exercised and is not of present importance. However, the college had a fixed detailed annuity plan when the contract was signed. If payment had been made the college would have been under obligation to issue an annuity bond in accordance with its plan, and the court found, pursuant to stipulation regarding facts, that the bond would have been so issued.
The judgment of the district court is affirmed.
|
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The opinion of the court was delivered by
Sloan, J.:
This is an original proceeding in mandamus to compel the state highway commission and the board of county commissioners of Miami county to proceed with the necessary, steps to improve a highway petitioned for under the benefit-district plan. The defendants have filed separate answers and the state, has moved for judgment on the pleadings, presenting the issue.
A petition, in due form and signed by the requisite number of petitioners, was presented to the board of county commissioners of Miami county asking for the. permanent improvement, under the district-benefit plan, of the highway extending north from Paola to the county line, a distance of about fourteen miles. Notice of the hearing, as provided by law, was published and the hearing .held November 15, 1927. The commissioners found that the improvement prayed for was a public utility and ordered that the highway be graded and improved in the manner provided by law. The petition was signed and the order made, with the understanding on the part of the petitioners and the county commissioners that fifty per cent federal aid and twenty-five per cent state aid would be available to assist in making the improvement. Whereupon the county commissioners applied to the state highway commission for federal and state aid. The application was rejected and no further action was taken by the county commissioners under the petition and order toward the construction of the highway.
It was afterwards agreed between the county commissioners and the state highway commission that the highway, which had then been designated as a state highway (known as Kansas state highway No. 7), should be built as a federal-aid, state-aid and county-aid project, and the work was in progress under this agreement when the highway was taken over by the state highway commission April 1, 1929. The state highway commission changed the routing of highway No. 7 so that it leaves the north line of Paola approximately three-quarters of a mile west of the old highway and proceeds in a northeasterly direction for about two miles, thence directly north one mile and then east about one-half mile, where it connects and joins with the old routing and proceeds north to the county line. Thereafter a benefit-district petition was presented to the county commissioners covering that part of the original benefit-, district highway, which, by the change in the routing, was no longer a part of the state highway system. The petition was approved, the improvement ordered and the work completed, the surface, however, being gravel. The state highway commission has surfaced the highway with gravel from the north end of the benefit district to the county line. The entire highway described in the motion has been graded and graveled and is an all-weather highway.
The defendants appeal to the discretion of the court and ask that the writ be denied. This court has repeatedly held that the writ of mandamus lies in the sound discretion of the court, and the court is bound to take a broad view of the rights of the parties and the public before a writ is granted.
In Kolster v. Gas Co., 106 Kan. 84, 86, 186 Pac. 738, the court said:
“Mandamus is a discretionary writ, and before granting it the court may and should look to the larger, public interest which may be concerned — an interest which the private litigants are apt to overlook when striving for their private ends. (The State, ex rel. Wells, v. Marston, 6 Kan. 524, 537; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127, 136; Golden v. Elliott, 13 Kan. 92, 95; The State v. Stevens, 23 Kan. 456; The State, ex rel., v. Comm’rs of Phillips County, 26 Kan. 419, 425.)”
The court is of the opinion, taking into consideration all of the facts and circumstances relating to the highway described in the motion as well as the- discretionary powers vested in the defendant in constructing a state highway system, that the writ should not-issue.
The writ is denied.
Smith, J., not sitting.
|
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The opinion of the court was delivered by
Burch, J.:
The proceeding is one of habeas corpus to procure discharge of petitioner from custody of the sheriff of Shawnee county. The deputy sheriff and the chief of police of the city of Topeka, and other city officials, were joined as respondents. The cause was submitted on the petition and the separate returns of the county officers and the city officers. Facts disclosed by the returns not contradictory of the facts stated in the petition are to be regarded as true.
The petition was filed in this court on January 15, 1931. The return of the county officers shows that on June 7, 1930, petitioner was convicted in the district court of Shawnee county of violation of the liquor law. The information contained two counts, and he was found guilty on each count. He was sentenced to pay a fine of $100 and to be imprisoned for thirty days under the first count, and to pay a fine of $100 and be imprisoned for six months under the second count. The jail sentences were to run consecutively, but defendant was given credit for some time spent in jail awaiting sentence. The sentences also provided that defendant should be confined in jail until fines and costs were paid. The sheriff’s return shows that fines and costs amounting to $217.40 have not been paid.
Petitioner contends he has served his jail sentences and, without discussing the subject, this may be conceded. He further contends the fines and costs have been paid, in this way: The sheriff should have put him to work at hard labor; he was willing to work, and had he been put to work he would have been allowed two dollars per day to apply on the fines and costs, and the fines and costs would thus have been satisfied.
Plaintiff’s contention that fines and costs have been satisfied is based on a fantastic interpretation of R. S. Supp. 62-2109. Under that statute the sheriff compels prisoners to work at hard labor only under direction of the board of county commissioners. The board of county commissioners acts only when there is work to be done. The petition discloses no action by the board of county commissioners, and no duty to take action.
The petitioner sought to make the chief of police and other officials of the city of Topeka privy to petitioner’s detention, because of their request to the sheriff that, when petitioner has served his sentence in the state case, the sheriff hold petitioner until the chief of police can take petitioner into custody to serve a sentence imposed by the city court of Topeka. The contention is that petitioner may not be compelled to serve his sentence in the city case because of delay in issuing and executing a commitment. There is no merit in the contention.
On June 22, 1928, petitioner was sentenced to pay a fine of $300 and to be imprisoned for thirty days, for violation of a liquor ordinance. Petitioner appealed to the district court. On December 11, 1928, the appeal was dismissed, but the case was not remanded to the city court until March 9,1929. On that date a commitment was issued, but was not executed. On April 25, 1929, an alias commitment was issued, but has not been executed. The reason the commitments were not executed was that petitioner kept himself concealed from the police officers of the city until May 17, 1930, when he was arrested by the sheriff for operating a still outside the city. Since that date petitioner has been in the hands of the sheriff.
The writ is denied.
|
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The opinion of the court was delivered by
Burch, J.:
The action was one by a contractor to recover for material furnished and labor performed pursuant to a contract with the board of county commissioners to construct a state highway. Judgment was rendered for plaintiff against the county and the state highway commission, and in the event the county should pay the judgment, for the county against the state highway commission. Defendants appeal.
The errors assigned are without merit.. In particular, the stock assignment which serves as an excuse for unwarranted appeals, that there was no substantial evidence to support the judgment, is trifling.
One item for which plaintiff recovered was material furnished which was rejected, as plaintiff claimed, in bad faith. As bearing on the question of bad faith, the result of a laboratory test of the material, made at a laboratory other than the testing laboratory at Manhattan, was properly received in evidence. The county was liable for material furnished pursuant to the contract, which was wrongfully rejected. Judgment was properly rendered against the county with whom the contract was made, and against the state highway commission because of liability assumed pursuant to R. S. Supp. 68-418.
The judgment is affirmed.
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Per Curiam:
This is an uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Tarak A. Devkota, an attorney licensed to practice law in the state of Kansas since 2001. Respondent’s last registration address with the Clerk of the Appellate Courts is in Kansas City, Missouri.
A hearing panel of the Kansas Board for the Discipline of Attorneys concluded that respondent violated KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence), KRPC 3.4(d) (2004 Kan. Ct. R. Annot. 449) (failure to make reasonably diligent effort to comply with pretrial discovery request), and KRPC 8.4(c) (2004 Kan. Ct. R. Annot. 485) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). The panel unanimously recommended published censure. Respondent did not file exceptions to the final hearing report.
FINDINGS OF FACT
The underlying facts found by the panel concerning these violations are summarized as follows:
On October 10, 2002, respondent entered his appearance as substitute counsel for the defendants, Joey Lutes, Virtual Wow, Inc., and Todd Gordanier, in a copyright case pending in the United States District Court for the District of Kansas.
On October 14,2002, the plaintiffs served respondent with their first requests for production of documents and interrogatories. The responses were due November 18, 2002; however, respondent did not provide the requested discovery by that date, nor did he request additional time to respond.
On November 22, 2002, plaintiffs’ counsel sent respondent a “Golden Rule” letter requesting responses to the discoveiy. Respondent did not respond to the letter. Plaintiffs’ counsel called respondent several times in early December 2002. Respondent did not return the calls until December 16, 2002, when he left a message for plaintiffs’ counsel. The next day, plaintiffs’ counsel sent respondent a letter via facsimile requesting that the discovery responses be provided by December 18, 2002. Respondent called plaintiffs’ counsel and informed her the defendants “would begin to respond” to the discovery requests on December 18, 2002, but did not state when they would be served.
On December 18, 2002, the plaintiffs filed a motion to compel discovery. United States Magistrate Judge David J. Waxse granted the motion on January 10, 2003, and ordered the defendants to respond to the discoveiy requests within 10 days of the date of the order, making the discoveiy responses due no later than Januaiy 27, 2003. Respondent did not provide the discoveiy responses to plaintiffs’ counsel until January 30, 2003, or January 31, 2003.
The respondent signed his clients’ names to their interrogatoiy answers. The signatures did not indicate that someone other than the clients had signed the answers. Further, respondent had his receptionist, a notary public, knowingly and fraudulently verify that the signatures were genuine. Fed. R. Civ. Proc. 33 expressly provides that interrogatories shall be answered “in writing under oath, . . . signed by the person making them.”
Later, during the deposition of Lutes and Virtual Wow on March 14, 2003, Lutes testified that the notarized signature on his interrogatoiy answers was not his. He testified that while he did not direct respondent to sign his name, he did tell him to do whatever was necessaiy to provide the discovery responses.
After this, respondent did not obtain proper signatures from Lutes or Gordanier, despite having sufficient time to do so after Lutes’ deposition and before Gordanier’s deposition, which was scheduled for March 17, 2003. Further, he did not inform plain tiffs’ counsel before Gordanier’s deposition that the signature on Gordanier’s answers to the interrogatories did not belong to Gordanier. During Gordanier’s deposition, he testified that the notarized signature on his answers to the interrogatories was not his, but that of the respondent. He testified that he specifically instructed respondent to sign the interrogatories for him.
The plaintiffs subsequently filed a motion for default judgment based, in part, on the contention that the defendants had submitted untimely interrogatory answers which bore false signatures. The defendants had until April 10,2003, to file a response in opposition to the motion, however, respondent did not file a response until April 16, 2003.
On May 9, 2003, Judge Kathryn Vratil ordered the defendants to provide interrogatory answers that had been personally subscribed to and sworn. Additionally, Judge Vratil directed the Clerk of the District Court to send copies of the order to the Kansas Disciplinary Administrator and the Missouri Secretary of State.
The case was ultimately setded in July 2003. The settlement included a judgment against the defendants, but the financial terms of the settlement were confidential.
The hearing panel then concluded as follows:
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that Respondent violated KRPC 1.3, KRPC 3.4(d), and KRPC 8.4(c), as detañed below.
“2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent fañed to provide diligent representation to Mr. Lutes, Mr. Gordanier, and Virtual WOW when he fañed to timely respond to discovery requests and when he failed to timely respond to motions. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Lutes, Mr. Gordanier, and Virtual WOW, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“3. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4(d). Specifically, ‘[a] lawyer shall not ... in pretrial procedure, . . . fañ to malee [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’ Id. The Respondent received the requests for discovery on October 14, 2002. The Respondent did not file a request for additional time nor did he provide responses to the requests for discovery within the 30 days provided by federal rule. On December 18, 2002, opposing counsel filed a motion to compel discovery. The Respondent did not file a response to the motion nor did he provide responses to the requests for discovery. On January 10, 2003, the Court issued an order compelling discovery. The Court ordered the Respondent to provide responses to the requests for discovery on or before January 27, 2003. The Respondent provided responses to the requests for discovery on January 30, 2003 (or January 31, 2003). Because the Respondent failed to make a reasonably diligent effort to respond to requests for discovery, the Hearing Panel concludes that the Respondent violated KRPC 3.4(d).
“4. It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). In this case, the Respondent engaged in conduct involving dishonesty when he signed his clients’ names to the answers to interrogatories and prevailed upon his legal assistant to verify that the false signatures were genuine. The Hearing panel concludes that the Respondent violated KRPC 8.4(c).”
In making its recommendation as to the appropriate discipline to be imposed, the panel’s reasoning is reproduced in part as follows:
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide diligent representation. Additionally, the Respondent violated his duty to the legal system to timely comply with reasonable discovery requests. Finally, the Respondent violated his duty to the legal profession to maintain personal integrity.
“Mental State. The Respondent negligently violated his duty to his clients. Further, the Respondent knowingly violated his duty to the legal system. Finally, the Respondent knowingly violated his duty to the legal profession.
Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury. As a direct result of the Respondent’s misconduct, the plaintiffs’ attorney fees increased, the Court wasted valuable time compelling the defendants to comply with the requests for discovery, and the trial in the case was delayed because discovery was not timely completed.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. Signing his clients’ names to the answers to interrogatories without any indication that someone other than his clients signed the documents, constitutes a dishonest act.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by (1) signing his clients’ names to the answers to interrogatories, (2) repeatedly failing to timely respond to motions, and (3) failing to timely comply with court orders.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 3.4(d), and KRPC 8.4(c). As such, the Respondent engaged in multiple offenses of the Kansas Rules of Professional Conduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 2001. The Missouri Supreme Court admitted the Respondent to practice law in 1999. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for just over 3 years. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct.
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended. The Respondent recommended that the Respondent be privately reprimanded. Kan. Sup. Ct. R. 203(a) sets forth the types of discipline imposed in Kansas. Private reprimand is not a type of discipline imposed in Kansas. The Hearing Panel assumes that counsel for the Respondent’s recommendation for a private reprimand would be either a censure, not published in the Kansas Reports or an informal admonition.
“While the Hearing Panel does not believe that the Respondent’s misconduct rises to the level of requiring a suspension, the Hearing Panel does believe public discipline is warranted in this case. Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
ANALYSIS
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also Supreme Court Rule 211(f) (2004 Kan. Ct. R. Annot. 275) (misconduct to be established by clear and convincing evidence).
The respondent did not file any exceptions to the panel’s final report. A hearing panel’s final report is deemed admitted under Supreme Court Rule 212(c) and (d) (2004 Kan. Ct. R. Annot. 285) when a respondent fails to file exceptions. In re Daugherty, 277 Kan. 257, 263, 83 P.3d 789 (2004) (citing In re Howlett, 266 Kan. 401, 969 P.2d 890 [1998] and In re Juhnke, 273 Kan. 162, 41 P.3d 855 [2002]). Further, respondent essentially admitted all of the factual findings at the hearing before the panel. We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt the same.
At the hearing before this court, the office of the Disciplinary Administrator recommended 3 months’ suspension. After careful consideration, we accept the panel’s recommended discipline of published censure as the appropriate discipline herein.
It Is Therefore Ordered That Tarak A. Devkota be and he is hereby censured in accordance with Supreme Court Rule 203(a)(3) (2004 Kan. Ct. R. Annot. 237) for violations of KRPC 1.3, KRPC 3.4(d), and KRPC 8.4(c).
It Is Further Ordered that the costs of these proceedings be assessed to the Respondent and that this order shall be published in the official Kansas Reports.
Davis, J., not participating.
Lockett, J., Retired, assigned.
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The opinion of the court was delivered by
Burch, J.:
The action was one for specific performance of a contract relating to alimony, for reformation of the contract sought to be enforced, or for some other kind of relief. A demurrer to the petition was sustained, and plaintiff appeals.
In February, 1928, the plaintiff, Charlotte Conway, and her husband, the defendant, A. D. Conway, entered into a contract, the material portions of which follow:
“This contract, between A. D. Conway, first party, and Charlotte Conway, second party, witnesseth:
“Whereas, the parties hereto are husband and wife, but on account of domestic difficulties, have become separated; and
“Whereas, it .is the desire of the parties by the terms and provisions hereof to enter into an agreement covering property matters during such separation, and until such time as a divorce is or may be obtained by either of the parties hereto against the other,
“Now, therefore, it is hereby mutually agreed: That first party shall pay to second party alimony in the amount of $200 per month in cash. . .”
The instrument contained other provisions relating to property interests which are not now material. It will be observed this contract was to last for a time only — until a' divorce should be obtained.
In May, 1928, the contract was changed to read as follows:
“This contract, between A. D. Conway, first party, and Charlotte Conway, his wife, second party, witnesseth:
“That whereas, the parties hereto did, under date of February 16, 1928, enter into a mutual contract of separation, covering alimony and property matters during such separation, and until such time as a divorce is or may be obtained by either of the parties hereto against the other, which contract is hereby specifically referred to and made a part hereof; and
“Whereas, the parties hereto, by mutual consent, desire to change said contract, as and to the extent herein set forth,
“Now, therefore, it is agreed that in event of any divorce hereafter obtained by either of the parties hereto against the other, the court shall, and it is hereby requested to incorporate the terms of said contract with reference to alimony and property matters, in any such decree that may be rendered, and to make the decree as to alimony and property in accordance therewith. In addition thereto, first party agrees to pay the court costs in such action and $100 attorney’s fee for second party’s attorney.
“It is further agreed, and this contract is made upon the condition, that the court shall retain jurisdiction of the cause, for the purpose of controlling and changing in the court’s discretion, the amount or amounts of alimony to be paid in the future, and that said matter may be reopened and reconsidered at any time, upon application of either party. In such event [provision for notice].
“It is further agreed that said payments shall be considered as payments of alimony to second party, and not as support money for the children, of second party.
“It is further agreed that in event of either the death or remarriage of second party, any and all payments, commencing with the date of said occurrence, shall thereupon cease -and terminate.”
It will be observed the original contract was continued in force except as modified, and payment of alimony in the sum of $200 per month by agreement continued to be temporary — until a divorce was procured and alimony was provided for by decree.
The contract was again modified by substituting one tract of real estate for another, a matter now of no concern. The payments to be made pursuant to the contract were made, and in September, 1928, the contemplated decree for alimony was entered. Neither party appealed, the decree became absolute, and the decree was complied with until May, 1929.
In May, 1929, Conway filed a motion to modify the decree because' of changed circumstances which he asserted warranted a reduction of the sum of money to be paid monthly. Mrs. Conway then struck the first blow at the decree. She opposed modification on the ground the court had' no power to modify. The court found the award should be reduced to $125 per month, but sustained Mrs. Conway’s contention that the court lacked power to make the modification. Conway then moved to modify the decree by striking from it the provision for monthly payments while plaintiff lived and remained unmarried. The motion was denied, Conway appealed, and this court held the provision was void and should be stricken from the decree. (Conway v. Conway, 130 Kan. 848, 288 Pac. 566.)
Ignoring the decree, Mrs. Conway now demands specific performance of the contract. The contract was for $200 per month until divorce, and then for a decree embodying specified terms. The contract was performed exactly as stipulated, and there is nothing further for Conway to do, so far as performance of the contract is concerned.
Realizing that specific performance does not lie to compel performance of performed acts, Mrs. Conway asks that the contract be reformed, and then enforced.. The remedy of reformation of a writing exists in order to make the writing express what the parties intended should be put in the writing. , In this instance there was a writing. That writing was modified. The modified writing was modified. A court decree was framed, at the request of the parties, according to the phraseology of the writing in its final form. There was no application to the court for correction or change of the decree, and it became absolute. The decree was complied with. When Conway undertook to exercise a privilege given by the decree, Mrs. Conway made no objection that either the writing or the decree was not in accordance with the intention of the parties. The parties intended Conway should pay $200 per month until a divorce was granted, and intended an alimony decree should be rendered in the divorce action embodying stated terms. The writing gave clear expression to that intention, and there is no ground for reformation.
What happened was this: The parties contracted on the assumption the district court possessed power to do two things — first, to award alimony in a sum per month to be paid while Mrs. Conway lived and remained single; and second, to make future modification of the award as changed circumstances might require. The assumed power did not exist, and the writing and the decree were unenforceable. It makes no. difference that the parties both believed the power existed. The court was without jurisdiction with respect to both subjects, and the parties could not confer jurisdiction by consent.
Mrs. Conway agreed to a decree awarding her $200 per month while she lived and remained single, on condition she could subsequently have the monthly payments enlarged according to her need and Conway’s ability to pay. Conway agreed to a decree requiring him to pay $200 per month while Mrs. Conway lived and remained single, on condition he could subsequently have the monthly payments decreased according to her need and his ability to pay. That was the basis on which the parties undertook to settle alimony. How they would have settled alimony if they had known the assumed power did not exist, nobody knows, and the district court has no authority to reform the writing to make it express what the court may think might have been agreed to, but which never was agreed to.
The prayer of the petition contains the following:
“That if it is decreed that plaintiff is not entitled to a performance thereof on the basis of monthly allowances with the total sum not specified, that the court ascertain and fix such certain, definite sum, based upon the real contract and intention of the parties and the life expectancy of the plaintiff; that said decree in said original divorce action be changed so as to specify a certain, definite sum; and that plaintiff have such other and further relief in the premises to which she may be justly entitled.”
It will be observed the prayer speaks of the real contract and intention of the parties. The real intention of the parties was expressed in an unambiguous writing which the court was requested to embody in a decree, and which the court did embody in a decree. The fact the result was not what the parties supposed it would be does not affect the character of the intention or the character of the .writing. To illustrate: A vendor promises to’ convey land and the vendee promises to pay for it, by spoken words which leave no doubt about intention or expression of intention. It is not material that both parties believed the oral promise to convey was enforceable. The law will not enforce it, whatever the benefit or detriment resulting from nonenforceability may be.
In this instance the manifested assent of each party was to a settlement of alimony which the law could not recognize or enforce:
“A contract is a promise or a set of promises for the unexcused breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” (Contracts, American Law Institute Restatement, ch. 1, § 1.)
Therefore there was no contract for the payment of alimony after divorce. The portion of the decree which embodied what the parties did agree to was nugatory. The result is very unsatisfactory to Mrs. Conway, and what she wants is that a court of equity shall now make a decree in the nature of an alimony decree, as a revision of or as a substitute for an alimony decree which has long since become final. The district court has no more power to take fresh jurisdiction over the subject of alimony than it had continuing power to revise the original alimony decree. (Conway v. Conway, 130 Kan. 848, 288 Pac. 566.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
William E. Jarvis, Martin O. Jarvis and Lilly Hutchings were joint owners of a tract of land, and W. E. Jarvis, who represented the other owners, had placed the sale of the land with two different brokers, H. B. Firestone, and F. M.' Luther & Sons. The price of the land was fixed at $2,500 net to the owners. Negotiations for the sale of the tract were begun on June 17, 1929, with the plaintiff, Firestone, who had concluded to buy it for himself, and on June 24, 1929, he wrote Jarvis that he would buy the land for $2,500 on terms stated, namely, $100 cash, $700 when good title was shown by an abstract, and $1,700 on or before August 15, 1929. He also stated that the abstract should be brought down to date and a deed be executed and sent to a certain bank in Cimarron to be delivered on compliance with the terms of payment. On June 26 Jarvis wrote to Firestone accepting the offer, saying that the necessary papers would be forwarded as soon as possible, that the deed was to be signed by one of the owners then living in South Dakota, and that a few days would be necessary to obtain that signature, and that the abstract would be mailed in a few days.
F. M. Luther & Sons had been looking for.a purchaser for the tract, and on June 8, 1929, wrote Jarvis stating that, they believed they had a prospective purchaser, and asking about the price. On June 10, 1929, Jarvis answered saying his price was “$2,500 net to us.” On June 24, 1929, F. M. Luther & Sons wrote that they had an offer of $2,250 for the land and asked Jarvis to wire the answer. Jarvis wired that he was still holding out for $2,500 cash. That wire was received by Luther & Sons on June 26, at 8:30 a. m. The prospective purchaser mentioned was E. Luther, who was not related in any way to the brokers of that name, and he immediately told the brokers that he would take the land at $2,500 and he paid F. M. Luther & Sons $200 cash as part payment. On June 26, at 9:30, the brokers wired Jarvis: “Have closed deal at $2,500 cash as per your telegram just received. Am mailing check with instructions.” F. M. Luther & Sons immediately wrote a letter to Jarvis confirming the above telegram and inclosing therein the check for $200, which was returned to them by Jarvis on June 28. Jarvis, it appears, lived in the country several miles from the station and the telegram from Luther & Sons was telephoned to him about 10 o’clock a. m. on the 26th, and while he was at the telephone receiving the telegram, his daughter placed upon the table the letter of Firestone, already mentioned, which had just been delivered by a rural carrier, stating that he would take the land. On the same day and at about 4:30 p. m. Jarvis wrote Firestone that he would accept the offer. About the same time he wrote F. M. Luther & Sons that the land had been sold previous to their offer and that he would return their check whenever it arrived. Defendant appeals.
While Jarvis proceeded upon the theory that he had sold the land to Firestone, he and his coowners hesitated to convey the land because of the adverse claim of Luther that the land had been sold to him and that he was entitled to a conveyance. Firestone was claiming a conveyance under the sale to him and this action was brought by Firestone to require the execution of a conveyance of the land under his purchase, and that Luther be enjoined from setting up any right or interest in the land. Luther’s answer was that he was the purchaser of the land under a contract made with Jarvis and he asked that Jarvis and his coowners be required to convey the land to him, and further that Firestone be barred and excluded from asserting any title, right or claim to the land. Jarvis answered for the owners and himself alleging that they were ready and able to make the conveyance to whomsoever was determined by the court to be the actual purchaser. They asked the court to adjudicate the controversy as between the two claimants and determine which of them was entitled to a conveyance.
The case was submitted upon an agreed statement of facts, most 'of which were embraced in letters and telegrams which passed between the parties, and upon these facts the court determined that Firestone was entitled to a conveyance of the land, and further adjudged that Luther had no right, title or interest in it. In his appeal Luther contends that he had accepted the terms proposed by Jarvis, that his acceptance was prior in point of time to the purchase by Firestone, and therefore he was entitled to a decree for a specific performance of the contract, and that Firestone should be left to his remedy for damages from the owners. The transaction with defendant, Luther, did not amount to a contract for the sale of the land to him. It may be noted that his brokers had never disclosed to Jarvis the name of the proposed purchaser. They did state that they had closed a deal at a price of $2,500 and added that they were mailing a check with instructions. What the instructions referred to was not stated. Aside from the fact that the name of the purchaser was not disclosed, the price, $2,500, was not sent, but only a check for $200 from some one unknown to the owners, who were in the dark as to the responsibility of the stranger. The check was presumably intended as earnest money, but the details as to the closing of the transaction, such as the making and delivery of the deed, the requirement of an abstract of title and where and when the balance of the price was to be paid before the delivery of a deed should be made, were not agreed to. Was the deed to be placed in escrow in some bank as well as the purchase money? These were questions of importance to the owners, who resided a considerable distance away from the location of the land. Perhaps the promised instructions included'some of these details as to the completion of a contract, but what they were is not shown. Whatever they were they necessarily introduced new elements, and the conditions included in the instructions prescribed by the undisclosed Luther have never been agreed to by the owners. It is obvious that a completed contract was never made between Luther and the owners. Where there are unsettled conditions, to be agreed upon by the owner and purchaser, there is no binding contract to be specifically enforced. (Bentz v. Eubanks, 41 Kan. 28, 20 Pac. 505; Spiher v. Johnson, 110 Kan. 339, 203 Pac. 696; Wing v. Mollett, 115 Kan. 116, 222 Pac. 88; Nichols v. Coppock, 124 Kan. 652, 261 Pac. 574.) Again, the broky ers themselves were not authorized to make a binding contract for the sale of the land. The extent of their authority was to find a purchaser willing to buy the land on terms prescribed by the owner. A mere employment of the broker by the owner with a direction to sell the land without more is not authority to the broker to make a binding contract of sale under which the owner may be compelled to convey the land to the purchaser. (Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267; Orr v. Rieger, ante, p. 558, 300 Pac. 1074, just decided.) In the latter case the rule is succinctly stated as follows:
“Written authority given to a real-estate broker to sell land does not authorize the broker to make a contract with the purchaser obligating the principal to convey to the purchaser.” (Syl. ¶ 1.)
There the owner, Rieger, lived in a remote city and had dealings with Baker, a broker. Baker telegraphed the owner that he had a prospective purchaser, the name of whom was not disclosed. The owner then sent Baker a telegram saying: “Sell at once, $800 cash to me clear, advise,” and the question raised in the case by the purchaser was: “May the appellant in this case (the purchaser), as the undisclosed purchaser, maintain this action against appellee (the owner) for the specific performance of his agreement to sell the land,” and this court responded: “Rieger made no agreement to sell the land, in the sense of the question. His telegram to Baker to sell for $800 net cash merely fixed the terms on which Baker might negotiate with the prospective purchaser.” It was accordingly held that the negotiation with the broker did not obligate the owner to convey the land to the proposed purchaser.
If this had been an action by the brokers against the owner to recover a commission upon the ground that they had procured a purchaser other questions would have been involved and they would have been in a stronger position than is Luther, the undisclosed purchaser in this action. It appears in the agreed facts that the brokers are making no claim for commission against Jarvis.
In behalf of Luther it is urged that when Jarvis declined to make a conveyance the only objection he mentioned was that he had sold the land to another. Jarvis wrote the brokers:
“I am writing to inform you that SW%, 32-23-28, Finney county, has been sold previous to your offer of $2,500 and it will therefore be necessary for me to return your check whenever it arrives, as you wired to-day that you were sending a check.”
The contention is that having stated that ground no other defense could be interposed and that to do so would be the mending of his hold. The rule invoked is not applicable here. Under the agreed facts one of the questions was whether Luther had a completed contract with Jarvis for the purchase of the land, and he is claiming that an enforceable contract had been made which should" be specifically performed. It has been determined that an enforceable contract with him had not been made, and hence there was no basis for his claim. In McCarter v. Rogers, 104 Kan. 204, 178 Pac. 62, where it was claimed that certain correspondence relating to the sale of land between parties had resulted in a binding contract, it was contended that the owner in the defense made was attempting to mend his hold. In holding that a binding contract had not been made, it was said:
“For the same reason, plaintiff’s contention that the defendant should not bo permitted to mend his hold and rely at the trial upon a different ground for refusing to convey from that stated in his second letter is not sound. The rule stated in Redinger v. Jones, 68 Kan. 627, 75 Pac. 997, followed in Stanton v. Barnes, 72 Kan. 541, 84 Pac. 116; Paul Co. v. Shaw, 86 Kan. 136, 119 Pac. 546, and in Braniff v. Baier, 101 Kan. 117, 165 Pac. 816, cannot apply, for the reason that it made no difference what actuated the defendant in refusing to convey, since there was no contract in existence binding him to convey.” (p. 205.)
It sufficiently appears that a binding contract was made by the owner with Firestone and hence the trial court was justified in rendering judgment in his favor.
The judgment is affirmed.
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The opinion of the court was delivered by
Sloan, J.:
The defendant was convicted of the offenses of forging and uttering a bank check, and appeals.
The defendant lived with his parents on a farm northeast of Seneca, in Nemaha county. The' prosecuting witness testified that on the evening of May 29, 1929, the defendant presented a check to her at her drug store in Seneca; that the check purported to be signed by Ernest Ulmer and was payable to Amos Ulmer in the sum of $10; that the defendant indorsed the check in her presence; that she gave him $9.50 in money and fifty cents in merchandise, and that in July, 1929, when she met the defendant in the county attorney’s office, she identified him as the person who had presented the check. When the defendant was confronted with the check by the undersheriff and county attorney he denied having written the check, and at their request wrote copies of it. A handwriting expert was called and testified that the handwriting and signature on the check in question and the checks identified by the county attorney as having been written by the defendant were written by the same hand. Ernest Ulmer testified that he did not sign the check in question and did not authorize anyone to sign it for him. Amos Ulmer testified that he did not indorse the check.
The defendant introduced testimony to the effect that he bore a good reputation in the community in which he resided and testified in his own behalf -that he did not write, indorse or cash the check, and that he was not in the drug store of the prosecuting witness on the night of May 29, 1929, but was at home. His father, mother and brother each testified that the defendant was at home at the time of the alleged offenses.
The defendant contends that the court erred in not granting a new trial for the reason that there was newly discovered evidence. The motion for a new trial was heard and denied on the 23d day of December, 1929. On February 24, 1931, R. M. Emery, Jr., one of the attorneys for the defendant, made an affidavit, the material part of which is as follows:
“That on the morning the motion for a new trial.came up before the above court, affiant was called over the telephone by Alice Williams, a neighbor of defendant, who stated that she understood the motion for a new trial was coming up, and the Baumans wanted her to come in, but it was so muddy she could not do so. That said Alice Williams stated to affiant over the telephone that neither she nor the other neighbors of defendant believed he was guilty, but that they felt that Miles Allen, Jr., who had committed suicide sometime prior to the arrest of Sam Bauman, was the guilty party, and for me to convey this information to Judge C. W.’ Ryan for her, and that if necessary she would come in, and make the same statement in open court.
“That when the motion for a new trial came up, affiant told the judge all of the above facts, and asked that the same might be incorporated in affidavit form and sworn to by Alice Williams, and filed as of that date, and as part of the motion for a new trial. The court stated that said affidavit might be prepared and filed, and that he would consider the substance thereof in said motion the same as if filed, but that it was hearsay, and would not be sufficient grounds for granting a new trial; that the jury had found the defendant guilty, and that he acquiesced in the verdict, notwithstanding the statements of Alice Williams aforesaid. That said affidavit of Alice Williams was never taken and filed, but that thereafter Lauren L. Williams and Miles L. Allen, Sr., and Harvey Allen came into the office of affiant on January 2, 1930, and affiant prepared the affidavits subscribed and sworn to by them on said date, before Elizabeth A. Troughton, a notary public of Nemaha county, Kansas, and an assistant in the office of affiant. That affiant understands that said affidavits are now in the possession of C. L. Kagey, of Beloit, Kan. That said original affidavits of said Lauren L. Williams, Miles L. Allen, Sr., and Harvey Allen were delivered by affiant to John H. Bauman, the father of defendant, to take to Beloit and to deliver to said C. L. Kagey.”
The affidavits of Lauren L. Williams, Miles L. Allen, Sr., and Harvey Allen are contained in the abstract. The record does not show that these affidavits were ever filed or presented to the court, and the statements contained in these affidavits do not appear to have been called to the court’s attention at the time it ruled on the motion for a new trial. Under these circumstances this court cannot consider the affidavits of Lauren L. Williams, Miles L. Allen, Sr., and Harvey Allen. (State v. Hobl, 108 Kan. 261, 194 Pac. 921; State v. Brecheisen, 117 Kan. 542, 232 Pac. 244.) The court did take into consideration, on the hearing of the motion for new trial, the statement made by Alice Williams as related by.Mr. Emery in his affidavit. We think the court properly held that this testimony, if adduced, would not be admissible in the trial of the case. We conclude, therefore, that there was no error in overruling the motion for a new trial on the ground of newly discovered evidence.
The defendant also complains of the improper admission of testimony on rebuttal. The defendant denied writing the check in ques tion and was asked on cross-examination to write some names and checks, which were introduced in evidence without objection on the part of the defendant. In rebuttal a handwriting expert was called to the stand and permitted to testify that the exhibits written by the defendant while on the stand and the check in question were in his opinion written by the same hand. This was objected to as not proper rebuttal. The court has a wide discretion in permitting the introduction of rebuttal testimony and, unless the defendant is hampered in presenting his case by reason of the introduction of such testimony, it is not ground for reversal. (State v. Abrams, 115 Kan. 520, 223 Pac. 301.) The objection was properly overruled.
It is next contended that the court erred in its instructions to the jury. The court, after defining reasonable doubt, closes the instruction with the following statement, of which complaint is made:
“You should not acquit the defendant because, under the evidence, he may possibly be innocent or convict him because he is probably guilty.”
The supreme court of Missouri, in State v. Nerzinger, 220 Mo. 36, approved an instruction which contained the following:
“If upon all the evidence you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal upon that ground, ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.”
In The People v. Lucas, 244 Ill. 603, the supreme court of Illinois sustained the following instruction:
“It may be possible that the defendant is innocent and yet at the same time there may be no reasonable doubt but that he is guilty.”
In State v. Rogers, 56 Kan. 362, 43 Pac. 256, this court held an instruction proper which contained the following:
“. . . But you cannot acquit the defendant unless all the jurors entertain a reasonable doubt.” (See, also, State v. Wimer, 97 Kan. 353, 155 Pac. 7.)
The court did not improve the well-recognized definition of “reasonable doubt” by adding the .statement. It was surplusage and of no assistance to the jury in reaching a verdict. We cannot say, however, that it deprived the defendant of any of the rights and privileges extended to him under the law.
Complaint is made of the conduct of the trial judge in the examination of a witness. The defendant recognizes the rule stated by this court in State v. Keehn, 85 Kan. 765, 118 Pac. 851; State v. Lower, 110 Kan. 669, 205 Pac. 364; and State v. Urban, 117 Kan. 130, 230 Pac. 77; but contends that the trial court went beyond the rule announced in these cases in that there was an attempt in the question asked to entrap the witness. There is some force to the contention of the defendant in this respect in that the question propounded by the judge does carry with it a suggestion that the court did not believe the statements made by the witness were true. The suggestion was improper. However, taking into consideration the entire examination of the witness, as well as the answers made to the questions propounded by the court, we cannot say that the conduct of the judge was prejudicial to the rights of the defendant.
It is also contended that the county attorney was guilty of misconduct in the introduction of his testimony. The misconduct complained of is in the cross-examination of Mrs. Bauman, the mother of the defendant. We have examined the record with reference to this examination. The conduct of the county attorney was not prejudicial to the defendant.
No reversible error appearing, the judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
In these two cases the state sought to enjoin the members of the state school book commission, the state auditor and the state printer from carrying into effect certain contracts with the owners of copyrighted materials for use in the publication of certain school textbooks.
In the first of these cases, No. 30,209, the petition alleged that in January of this year the state school book commission made a contract with the John C. Winston Company, a Philadelphia publishing house which owned' certain copyrighted materials used in the publication of .school textbooks on geography. The gist of that contract was that for the sum of $65,000 in cash to be paid by the commission the Winston company sold to it the right and privilege for five years to use its copyrighted texts on geography with Kansas supplement thereto, in books 1 and 2, and agreed to supply the commission with the requisite electroplates and materials incidental thereto, to enable the state printer to print such textbooks for use in the public schools of this state.
In case No. 30,210 it was alleged that a contract of similar character was made between the commission and the Bobbs-Merrill Company, a publishing concern which owned copyrighted materials used in the publication of school primers and school readers, whereby for the sum of $70,000 in cash the Bobbs-Merrill Company sold to the commission the right and privilege for five years to use its copyrighted texts in the printing and publishing of school primers and school readers, and agreed to supply to the commission the electroplates and materials incident thereto to enable the state printer to print those textbooks for use in public schools.
In each of plaintiff’s petitions it was alleged that the contracts were ultra vires, illegal and void, and in direct conflict with provisions of statute expressly prohibiting the commission from purchasing any machinery, stock or other material used in the making, printing and manufacture of school books, and likewise in violation of statutory provisions requiring that all mechanical work connected with the manufacture of school books should be done under the supervision of the state printer at the state printing plant.
The petitions also alleged that vouchers for the payment of the stipulated sums under those contracts were in the hands of the state auditor, Will J. French. The prayer in each case was for temporary and permanent injunctions to restrain defendants from carrying the contracts into effect and to restrain the auditor from issuing state warrants for the payment of the stipulated amounts.
The defendant commissioners demurred to the petitions. De fendant French, state auditor, filed a separate answer admitting that vouchers for the amounts payable under the contracts had been presented to him for approval, and that he was in doubt about their validity. He raised certain legal questions and invoked the judgment of the court for his guidance.
Temporary restraining orders were issued when the actions were filed. The state moved to expand these into temporary injunctions. The defendant commissioners moved to set them aside. They also demurred to a portion of the separate answer of the state auditor, and moved -the court to pass on questions of law in advance of a trial on the facts.
All these motions came on for hearing. Counsel for the several parties stated the legal questions in controversy. Defendants presented evidence. Plaintiff and the auditor introduced no evidence. The trial court made findings of fact and conclusions of law, and delivered a memorandum opinion, and in accordance therewith judgment was entered setting aside the restraining orders, denying temporary injunctions, and final judgments were rendered in favor of the demurring defendants in both cases and against the plaintiff and the state auditor.
The state appeals. The auditor acquiesced in the judgment, but his counsel as amicus curia filed a brief which this court has carefully perused.
The importance of an early and authoritative determination of the questions involved being apparent in order to avoid delay in furnishing the requisite textbooks on reading and geography when the public schools open this coming autumn persuaded this court to permit the cases to be submitted on a very informal record and without a transcript of the evidence. This method of presenting this appeal has materially increased our task of studying the matters which need to be reviewed, but whatever disputed facts may have been developed in the trial, those were all settled by the special findings or implied in the trial court’s judgment; and the only objections now urged against that judgment pertain to legal questions involved in the construction of certain pertinent statutes. Before examining those statutes,'it will be helpful to scrutinize the contracts whose validity is challenged in these actions. In case No. 30,209 the evidence shows that on December 19, 1930, the John C. Winston Company addressed a proposition to the commission as follows:
“The John G. Winston Company, of 1006-16 Arch street, Philadelphia, Pennsylvania, incorporated under the laws of Pennsylvania, hereby submits to the Kansas state school book commission the proposal for the use of copyright and the lease of plates for the purpose of publishing and distributing in the state of Kansas and to sell in completed form: Human Geography, by J. Russell Smith, Ph. D., of Columbia University: Book I, Peoples and Countries; Book II, Regions and Trade (with Kansas Supplement), for a continued period of five years at the same flat sum bid of five years ago, viz., sixty-five thousand dollars ($65,000). New plates with the figures and statistics of the 1930 census will be furnished free as soon as made available.”
The contract made on January 3, 1931, pursuant to the negotiations thus initiated, in part, reads:
“Whereas, The party of the second part, acting through its state school book commission, which has been duly convened after full compliance with all the requirements of law, and
“Whereas, The party of the second part [state school book commission] has made a proposal to the party of the first part to purchase from the said party of the first part, for the sum of sixty-five thousand dollars ($65,000), in cash, the right and privilege to use for a term of five years commencing on the 1st day of July, 1931, its textbook in geography, entitled ‘Human Geographies,’ by J. Russell Smith, Book I, Peoples and Countries, and Book II, Regions and Trade, with Kansas Supplement. It is hereby agreed by parties of the first and second parts that in the payment fifty-five thousand dollars ($55,000) is compensation for geographies I and II, and ten thousand dollars ($10,000) for the Kansas Supplement.
“Now, therefore, the said party of the first part [John C. Winston Company], in consideration of the premises, hereby covenants and agrees with said party of the second part as follows:
“I. That the party of the first part hereby agrees to deliver to the state printer of Kansas, upon his demand and within thirty days, two sets of new electrotype plates of the 1930 revised edition of the Human Geographies One and Two, and to furnish free of charge any subsequent revisions and corrections during the life of this contract. Demand for these new plates to be made to the party of the first part in writing and delivery of plates to be made within thirty days or as near that time as possible. All plates are to be subject to the approval of the state printer of Kansas. Defective plates are to be replaced to the state printer free of cost, breakage and reasonable wear and tear excepted.
“II. That it will protect said party of the second part against any and ail claims which may be made against it for infringement of copyrights or otherwise because of the use of said plates. That said party of the second part shall have the exclusive right to print and publish said geographies.
“HI. That the party of the second part will, at the expiration of this contract, return or send to the party of the first part all plates mentioned above that it has received from the said party of the first part and any duplicates that it may have received, without compensation therefor.
“IV. The party of the second part hereby certifies that it has adopted the said geographies for use in the public schools of the state of Kansas as provided by law.”
In case No. 30,210 the contract, in part, reads:
“I. That the party of the first part [Bobbs-Merrill Company] agrees to sell to the party of the second part [state school book commission] the right to use the plates and copyrights of the Bobbs-Merrill readers, by Baker and Baker, books one to eight, inclusive, and the Bobbs-Merrill primer, and that it will, on thirty days’ notice, deliver to the state printer of the state of Kansas two sets of nickel steel plates, and brass plates for printing the cover, of the Bobbs-Merrill readers, books I to VIII inclusive, and the Bobbs-Merrill primer. That said plates shall be exact duplicates of the pages of the samples of said books heretofore delivered to said state school book commission and shall be of the same wearing qualities, strength and perfect type as the plates used in printing said sample books. All plates are to be subject to the approval of the state printer of Kansas. Defective plates are to be replaced to the state printer free of cost, breakage and reasonable wear and tear excepted. That the Bobbs-Merrill primer is to contain the necessary number work.
“II. That it will protect said party of the second part against any and all claims which may be made against it for infringement of copyrights or otherwise because of the use of said plates. That said party of the second part shall have the exclusive right to print and publish the Bobbs-Merrill readers, books one to eight inclusive, and the Bobbs-Merrill primer, for sale and use in the schools of Kansas.
“III. And said party of the second part, the state school book commission, in consideration of the foregoing, covenants and agrees to pay to said party of the first part seventy thousand ($70,000) dollars for the right to print and publish the Bobbs-Merrill readers and primer, and for two sets of plates, or sixty thousand dollars for the readers and ten thousand dollars for the primer. Party of the second part, the state school book commission, further agrees that it will not print from said plates for sale outside of the state of Kansas.
“IV. Said party of the second part, by said state school book commission, hereby certifies that it has adopted said Bobbs-Merrill readers and primer, by Baker and Baker, for use in the public schools of Kansas, as provided by law.”
The evidence disclosed that the parties with whom the commission contracted would not consent to sell the right to publish their texts unless the electroplates furnished by them were used in the printing of the textbooks to which they pertained. There may have been sound business reasons for that attitude on the part of the copyright owners. These same texts were being published by private enterprise for sale throughout the United States and it might discredit those texts if they were printed for use in Kansas in less artistic fashion than the standard which they had set for the use of these school books throughout the entire country. The state printer does not have the necessary equipment to do electroplating work. The evidence makes it clear that in the development of the printer’s art the work of engraving and of electroplating have parted company from that of ordinary printing and bookbinding, and are not ordinarily or conveniently carried on in printing plants. As the publishing business is now conducted electroplating and engraving are regarded as distinct lines of work from that of printing and bookbinding.
The contract for the copyrighted materials and electroplates to be used in printing and publishing the textbooks on geography is virtually a renewal of a previous five-years’ contract with the school book commission. There are hundreds of illustrations which accompany the copyrighted text, many of them multicolored, and each map or colored picture requires a separate plate for each color. The cost of making a set of plates for each colored illustration varies from $100 to $250; a few sets cost $500 per set, and one cost $750. Without going into details, the same situation is presented to some extent in the necessary or desirable use of colored plates in the primers and readers.
The other significant facts in evidence are sufficiently summarized in the trial court’s findings:
“1. The state school book commission did not at any time have in its possession or control any plant for the making of electrotype plates or for the making of engravings.
“2. The state printer has not at any time from the year 1913 to the present time, inclusive, had in his possession or control any plant for the making of electrotype plates or for the making of engravings.
“3. A plant for the making of electrotype plates to be used in making school books adopted by the state school book commission and printed by the state printer would cost, to acquire and establish the necessary machinery and apparatus, from thirty to forty thousand dollars, and it would be necessary to permanently employ at least four operators at such plant.
“4. A plant for the making of engravings to be used in making school books adopted by the state school book commission and printed by the state printer would cost, to acquire and establish the necessary machinery and apparatus, from sixty to seventy thousand dollars, and it. would be necessary to permanently employ at least five operators at such plant-.
“5. From the year 1913 until the present time, inclusive, it has been and is the general practice in the printing trade in Kansas and throughout the United States that electrotype plates have been and are manufactured at separate plants from printing plants, and that engravings of illustrations to be used for printing have been and are manufactured at separate plants from printing plants.”
On the pleadings and evidence thus outlined the trial court reached the following conclusions of law:
“1. The court concludes that the defendant, constituting the state school book commission, had a right, in making the contract in question in this case, to obtain the right to use the plates referred to in that contract.
“2. The court concludes that the defendants, constituting the state school book commission, in making the contract in question in this case, had the right to agree to pay for the use of the copyrights and of the plates in question a lump-sum royalty in advance.
“3. That the contract made by the commission is not void because the charge for the right to publish the text of the school books is intermingled with other charges, even though it is impossible to determine whether any of the charges is grossly excessive. That the action of the commission in agreeing to pay a lump sum was not arbitrary and unreasonable.”
To determine what, if anything, is wrong with these conclusions of law and the judgment entered thereon requires an examination of pertinent statutes and certain official records.
State publication of textbooks was initiated by the enactment of chapter 288 of the Session Laws of 1913, which created a state school book commission to succeed to the powers formerly exercised by the school textbook commission. The superseded body merely had power to make selections of school books and to adopt uniform series of textbooks for use in public schools. (Laws 1897, ch. 179.) These school books were published by private enterprise. The new commission took over the duties of the older body, but its powers were greatly enlarged.. It was authorized to acquire real property .and to erect buildings thereon as an addition to the existing state printing plant, so as to permit the expansion of the operations of that institution, and to purchase all needed machinery,' type and printing and binding materials for the publishing of school books. The act clearly indicated the state’s purpose to embark in the business of printing and publishing school books for use in the public •schools of this commonwealth. The act authorized the commission to procure copyrights, or to contract for the right to publish school books on a royalty basis and to provide for the preparation, publication, purchase, sale and distribution of a state series of school textbooks to be sold to patrons of Kansas public schools at cost. Such were the avowed purposes of the statute as expressed in its title.
Section 3 (since amended and consolidated with Laws 1915, ch. '297, § 1; R. S. 72-4101) provided:
“The said school book commission shall, as soon as practicable, adopt, write, select, compile, or cause to be written, or compiled, or purchase copyrights for a complete series of school textbooks for use in the public schools in the state of Kansas, or may contract for the right to publish any or all of such books on the payment of an agreed royalty therefor. . . .”
Section 4, which is now R. S. 72-4103, in part, provided:
“Said state school book commission shall also have power ... to contract with authors and publishers upon a royalty basis, upon an exclusive right to publish, and use in the state of Kansas any school textbook written or published by them. The state school book commission shall furnish to the state printer copy and design for all diagrams and illustrations to be used in any school textbook published by the state under the provisions of this act.”
Section 5 (R. S. 72-4104) provided:
“The printing of all textbooks published by the state, and provided for in section three of this act, and .all mechanical work connected therewith shall be done by and under the supervision of the state printer, at the state printing plant.”
Section 12 appropriated $150,000 to purchase grounds, erect necessary buildings, buy necessary machinery, presses, type, and electroplating equipment as may be required in the manufacture of the school textbooks provided for by the act. The same section also appropriated $50,000 to pay authors, artists, compilers, stenographers and to purchase copyrights and plates, and other supplies, to prosecute the work authorized by the act. A revolving fund of $25,000 was also provided to buy paper, printers’ and binders’ materials, and to pay for labor; and this fund was to be reimbursed from the sales of school textbooks. A contingent fund of $2,000 was also provided to defray certain expenses of the commission. The aggregate of these appropriations was $227,000, and while the statute did not expressly limit the time in which they could be expended, the constitution itself would limit the. time to the fiscal biennium ending June 30, 1915. (Const., art. 2, § 24.)
Section 7 (R. S. 72-4106) also provided that the school textbooks published under authority of the act could only be sold to school patrons of this state — a necessary precaution in deference to the constitutional provision which strictly limits the extent to which the state may embark in business ventures. (Const., art. 11, § 8; State v. Kelly, 71 Kan. 811, 81 Pac. 450; State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 48, 49, 267 Pac. 31.)
The nineteenth biennial report of the state auditor shows how the appropriations which launched the state in the business of furnishing textbooks for use in Kansas public schools were expended. An excerpt from page 44 reads:
The following relating to disbursements during the fiscal year ending June 30, 1914, is shown at page 97:
The auditor’s twentieth biennial report, page 43, shows the disposition of the remainder of the appropriations made in 1913, at the close of the succeeding fiscal biennium, June 30, 1915. In part it reads:
No material changes of present concern are reflected in the session laws of succeeding legislatures until 1923, when the earlier policy of conducting the book publishing business of the state school book commission was abolished. Until that time the commission had its own machinery, paper stock, printing and binding materials; and its business, although conducted under the supervision of the state printer and the state printer was himself a member of the commission, was operated independently of the'other activities of the state printing plant.
By chapter 10 of the Session Laws of 1923 the legislature decreed that the mechanical end of the school book publication should be under the control of the state printer; the commission should turn over to him all its machinery, stock and equipment (R. S. 74-303); that the commission itself should no longer engage in the business of making, printing, or manufacturing school books, and that it should cease to purchase equipment and stock for that purpose; that the state printer should pay the commission the original cost of its equipment, stock and materials transferred to his custody; and that he should make, print and manufacture all school books ordered by the commission. (R. S. 74-304.) The same act created a revolving fund of $500,000 to be used by the commission-
“. • • For the purpose of the purchase of copyrights, the payment of royalties, payment of authors, compilers, critics, artists, editors, advisers, stenographers, for the purchase of school books and for the payment to the state printer for making, printing and publishing all school books which he may be required to make, print, bind, or manufacture, by said commission as required by law, . . . and all incidental expenses which may be contracted or incurred by said commission in carrying out and into effect their powers and duties as such commission.” (Laws 1923, ch. 10, § 1.)
No material changes in the legislative policy set on foot by the statute of 1913 as amended by the statute of 1923 appear. Succeeding legislatures have reappropriated to the use of the commission its revolving fund, as in the instance of Laws 1929, chapter 24. Our attention is directed to the governor’s message to the legislature, on January 14, 1931, in which, among other matters, the contracts involved in these lawsuits were discussed, and a legislative investigation recommended. We also note the legislature’s response thereto in the adoption of a resolution authorizing the appointment of a committee to investigate all matters pertaining to the school textbooks and relating to the acts and policies of the school book commission in relation thereto. (Laws 1931, ch. 269.) These incidents, however, have to do with matters of public policy which it is the exclusive prerogative of the legislature to authorize, change, or abolish, and are not within our judicial province or concern. Courts must deal with the law as it is, not as it might or should be.
Turning to the appellant’s objections to the judgment, the state’s main contention is that the commission was not authorized to purchase the right to use the electroplates containing the copyrighted texts on reading and geography. The state’s idea is that the commission should have confined its range of purchases to owners or authors of textbook matter in old-fashioned manuscript, so that the labor of setting it in type for printing could be done by work men employed by the state printer; or if the textbook matter were desired to be put into electroplate form before printing, the work of making the electroplates would have to be done at the state printing plant.
The statute of 1913 did authorize the commission to provide electroplating facilities, and counsel for the state regard its failure to do so as something mysterious, but there is no mystery about it. It was shown at the trial that it would cost around $100,000 to establish and equip an engraving and electroplating plant and would require the permanent employment of at least nine skilled workmen to operate it. Of course these workmen could not be recruited unless they were employed the year round, and the making of all the electroplates and engravings required for publication of school books would .only occupy their time for a portion of the year, not more than a few months. And of course the state could not expand its business of making these plates to serve private customers. The statute forbade it (R. S. 72-4106), to disregard which would imperil the constitutionality of the whole scheme of state publication. (State v. Kelly, supra.) It is therefore quite understandable why the authorized facilities for making electroplates were not created at the state printing plant, and why the money appropriated for that purpose was allowed to lapse, as shown in the excerpts from the state auditor’s report above quoted.
Appellant cites R. S. 72-4104, which declares that the printing of textbooks and all mechanical work connected therewith shall be done at the state printing plant. That provision does not relate to the making of electroplates which are an integral part of the copyrighted materials prepared for sale or lease according to the modern practice of the school-book publication business. At great expense they could be made in a printing plant specially equipped to do that kind of business. Economically the art of electroplating has developed separately, and neither the statute nor the dictates of common sense forbid the commission or the state printer to refrain from taking advantage of modem methods and business customs in publishing textbooks for Kansas school children. The modern method of owners of copyrighted materials adapted for textbooks appears to be that of engraving or electroplating the subject matter before it is offered for sale to parties desiring to publish it. In other words, the up-to-date idea is to have the'literary materials and illustrations in the exact shape the authors and copyright holders desire it to appear when printed before they will contract to sell it or sell the right to publish it. Should it be declared as a matter of law that in that state of the industry the commission should refrain from dealing with owners and authors of such materials and confine their negotiations to whatever authors and copyright holders they can find who are less up-to-date in their manner of preparing their texts for publication? We think not. The thousands of electroplates which constitute the texts and illustrations for the making of the primers, readers and geographies, the right to publish which was acquired by the commission, are not mere “stock or other material used in making, printing or manufacturing school books” which the commission is forbidden to purchase under R. S. 74-304. Those plates are in substance and effect the copyrighted texts comprising the essential subject matter which the commission is authorized to acquire from owners and authors, under its comprehensive statutory powers quoted above.
In the brief submitted by counsel for the auditor, this court is urged to determine for his guidance whether the state school book commission can contract for the right for five years to publish school books “by the payment of an agreed-royalty therefor.” A fair reading and interpretation of R. S. 72-4101 and 72-4103 require that an affirmative answer be given to this pertinent question. We regard the term “royalty basis” as too academic for discussion. Every well-informed person should know that “royalty basis” in reference to literary property means the monetary perquisite the publisher has to pay to an author or copyright holder for the privilege of publishing it. The auditor also questions the validity of the agreement to pay for the privilege of publishing an author’s or copyright holder’s textbook materials in a lump sum. Apparently the statutes already cited contemplate that very thing. The commission is authorized to purchase manuscripts, copyrights and plates. While the record does not show by evidence what the texts and copyrighted materials involved in the contracts under consideration would cost if purchased outright, it needs no evidence to understand that they would cost a vastly greater sum than the commission has to pay for the right to use them for five years in the publication of textbooks for use in Kansas public schools only, and where the owners’ rights of publication were not curtailed or infringed throughout the rest of the country.
Some superficially invidious comparisons are made between present costs and prices of school books and those which prevailed in 1913 when the case of State, ex rel., v. Innes, 89 Kan. 168, 130 Pac. 677, was decided. It is quite true that in that relatively inexpensive and comfortable age we lived in before the world plunged into the holocaust of war, school books, like almost everything else, were much lowér in price than at present. This lawsuit cannot be made to hinge on such points, although it is gratifying to note that the learned trial court found (in a finding which is not contested in this appeal) that the textbooks provided for by the contracts under fire will cost substantially less than they would if the state had to go to the expense of building and equipping its own engraving and electroplating plant and to get together the hundreds of illustrations required for reproduction and use in the printing and publishing of primers, readers and geographies for the half million children who will foregather in the public schools of this commonwealth on the first of next September.
The other arguments urged against the judgment have been duly considered, but they suggest nothing which would warrant its reversal or modification in any respect.
The judgment is affirmed.
Smith, J., not sitting.
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The opinion of the court was delivered by
Smith, J.:
This is an action for damages suffered when an automobile driven by plaintiff collided with one driven by defendant. Judgment was for defendant. Plaintiff appeals.
The plaintiff was driving west about 8:30 o’clock in the morning on a township road. The defendant was driving south upon a county road, the main highway between' Cleveland and Spivey in Kingman county. At the intersection of these two roads the cars collided. It was daylight and the roadway was dry. Each party had the opportunity of a full view of the road on each side for more than a quarter of a mile before reaching the intersection. Both drivers were badly injured and both cars badly wrecked. The jury returned a verdict for defendant and answered special questions as follows:
“1. At what rate of speed do you find plaintiff’s car was traveling as it entered the intersection? A. Five miles, approximately.
“2. Did the plaintiff, prior to his entering the intersection, see the defendant approaching from the north? A. Yes.
“3. If you answer the above question in the affirmative, state: (a) How far east of intersection plaintiff was when he saw defendant. A. Twenty-five feet east of center of intersection.
“(b) How far north of intersection defendant was when seen by plaintiff. A. Approximately 600 feet.
“4. At what rate of speed do you find plaintiff’s car was traveling at the time of the collision? A. Approximately ten miles per hour.
“5. If you answer question No. 2 in the affirmative, state whether or not-plaintiff observed the approximate rate of speed at which defendant was traveling. A. Yes.
“6. If you answer the above question in the negative, state what, if any-, thing, prevented plaintiff from observing and knowing the approximate rate of speed at which defendant was actually traveling. A.-
“7. Did plaintiff, at or immediately before entering the intersection of highways, look to the north for approaching cars -on the county highway? A. Yes.
“8. If you answer the above question in the affirmative, state: (a) State distance defendant’s car was north of point of collision. A. Approximately 600 feet.
“(b) Rate of speed defendant’s car was then traveling. A. Approximately fifty miles per hour.
“(c) State what, if anything, prevented plaintiff then having a full and unobstructed view of defendant’s car. A. Nothing.
“9. If plaintiff had been looking for approaching cars on the intersecting highway and had his own car under control, what, if anything, would have prevented said plaintiff from stopping his car or turning to the left and thereby have avoided the collision? A. Nothing.
“10. State fully what acts of negligence, if any, you find to have been the direct and proximate cause of plaintiff’s injury and damage. A. Having seen defendant’s automobile approaching at a high rate of speed he willfully and neglectfully drove his automobile in front of defendant’s automobile. With due care he could have prevented the collision.
“11. If you find for the plaintiff, state what, if anything, you allow on the following items: (None of 11-answered.)
“12. Did the plaintiff, Antrim, slow down and substantially stop his car immediately prior to entering the intersection of the roads at the point of collision? A. Yes.
“13. What, if anything, was there to have prevented the defendant, Speer, from observing the automobile of the plaintiff, Antrim, at a sufficient distance to have avoided the collision? A. Nothing.
' “14. At what rate of speed was the defendant driving the car used by him at the point of collision? A. Approximately fifty miles per hour.”
Appellant filed a motion to set aside the answer to questions, 5, 9 and 10 on the ground that the answers to the questions were, contrary to and not supported by the evidence. This motion was denied by the trial court and appellant argues here that it should have been sustained. He argues that the findings of the jury with the above questions stricken out would show as a matter of law that the plaintiff was not guilty of contributory negligence.
As to the answer to question No. 5, the plaintiff testified that when he reached the intersection he stopped, looked up and down the road and observed defendant’s car coming. Of course, if he saw it coming he could tell approximately how fast it was coming and that’s all the jury meant by their answer to that question.
As to the answer to question No. 9, the record fails to disclose how the jury could have answered it in any other way.
The answer to question No. 10 is objected to further in the brief of appellant because it states a conclusion rather than an ultimate fact. The rule is that an objection that an answer is a mere conclusion and indefinite is not available as error where no request was lliade that the jury be required to make the finding more definite and responsive. (Bagnall v. Hunt, 131 Kan. 805, 293 Pac. 733.)
A further answer to this objection is that, if the answer was a conclusion it was a correct conclusion. The jury found that the plaintiff stopped his car and observed the defendant approaching at a high rate of speed and that the plaintiff only traveled twenty-five feet while the defendant was traveling 600 feet. At the time plaintiff started onto the road defendant was 600 feet away traveling fifty miles an hour, or seventy-three feet per second. He was a little more than eight seconds away from the point of collision. Plaintiff entered the intersection at five miles per hour. He was traveling ten miles per hour at the point of collision. He therefore doubled his speed in twenty-five feet. It is fair to assume that his average speed was seven and one-half miles per hour. At this rate he would have covered twenty-five feet in two and one-half seconds. This would have given him approximately five seconds to spare after he got clear across the road before the car of defendant reached the intersection. This kind of argument undoubtedly must have been made to the jury and they must have concluded that the story told by plaintiff was not correct. An analysis of these figures leads one to the conclusion that what plaintiff did was to drive his car in front of the car of defendant without taking careful note, as he should have done, on the distance the car of defendant was away and the speed at which it was approaching. These two things he was bound to observe. On behalf of plaintiff it is urged that the court should have instructed the jury that the plaintiff had a right to anticipate that the defendant was not driving his automobile at the rate of speed which exceeded that authorized by law at the time of the collision, and that if the plaintiff underestimated the speed at which the defendant’s car was approaching, and believed he had abundant time to cross the intersection until it was too late to do anything to avoid the collision he would not be guilty of contributory negli gence, if in fact the automobile driven by defendant Speer was traveling at a higher rate of speed at the point of and just prior to the collision than the greatest rate of speed authorized by the then existing law. Instructions such as above would be proper to give in a case where the evidence introduced furnished any basis for them. However, the evidence in this case does not furnish such a basis. The plaintiff’s argument amounts to a contention that he had a right to stand by and watch the car of defendant approaching and when it had reached a point from which it would be impossible for him to get his car across the road before the car of defendant should arrive at the intersection that he could then drive out and rely on the law of negligence and the statutes against speeding to overcome the old law of physics that two bodies cannot occupy the same space at the same time. Under the findings of the jury, the car of defendant was not 600 feet away when the plaintiff started out on the road. It could not have been more than about 200 feet away. We know that must be so because the cars collided. We conclude that the plaintiff was guilty of contributory negligence when he attempted to cross the road in front of the approaching car when it was no farther away.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for the cancellation of deeds to a farm in Neosho county and to a house and lot in Erie. Judgment was for plaintiffs. Defendants appeal.
The petition of plaintiffs alleged the ownership of the property in plaintiffs, the execution of deeds to D. .D. Moorehouse and the changing of this name to that of H. T. Adams without the consent of grantors. The petition also alleged that in return for the above-mentioned deed appellees received from D. D. Moorehouse a deed to certain described property in Kansas City; that this deed was recorded without the knowledge of appellees, and that before the commencement of this suit a good and sufficient warranty deed for the Kansas City property was tendered D. D. Moorehouse; that George H. Payne died November 6,1927, leaving a wife and several grown children, the appellees herein, and that Ada Payne, his wife, died May 15, 1929. 'It was further alleged that defendant, H. T. Adams, and the Gregg Realty Company fraudulently claim some interest in the Neosho county property, and that they are wrongfully in possession.
The petition alleged that on July 13, 1926, the Gregg Realty Company owned the Kansas City property; that the bare legal title was in D. D. Moorehouse, a stenographer for the Gregg Realty Company; and that the Gregg Realty Company was the agent for the Paynes in the matter of trading or disposing of the above-mentioned home and farm properties.
It alleged that shortly before July 13, 1926, one W. E. Solomon, an agent of the Gregg Realty Company, induced the Paynes to come to Kansas City, and showed them the apartment in question; that said Solomon, together with other representatives of the Gregg Realty Company, pretended that the apartment was owned by a man named D. D. Moorehouse and represented that it had been yielding, and in the future would yield, a gross annual revenue of $2,400; that the net annual income would be $1,700, that the property was encumbered with a mortgage of $8,000, that $500 would be due in December of 1926, and that the owner of the mortgage did not desire the payment of the mortgage when due, but had promised to renew it; that if a new loan should be desired there would be no difficulty in obtaining a loan for $15,000, that loans in that amount were common on similar properties and that a loan in that amount had been promised on this property; that the reasonable market value of this property was $26,000 and it had never sold for less. It was alleged that Solomon and the other representatives of the Gregg Realty Company assured the Paynes that the Gregg Realty Company would protect and represent them faithfully in the negotiations and consummation of an exchange of the Neosho county property for the Kansas City property for a commission of $320.
It was further alleged that all of the above statements were false and were known by the Gregg Realty Company and its representatives to be false, and were a part of a scheme to deprive the Paynes of their property; that the Paynes signed a real-estate exchange contract providing for the exchange of the properties with D. D. Moorehouse, relying upon the above false representations and believing them to be true; that on the same day the Paynes executed deeds to their properties and delivered them to the Gregg Realty Company to be delivered to D. D. Moorehouse, but that they never were delivered to her; that on July 30, 1926, the Paynes executed two additional deeds to D. D. Moorehouse, which were recorded, and that the name of the grantee, D. D. Moorehouse, was erased and the name H. T. Adams fraudulently substituted; that H. T. Adams was a stenographer in the office of the Gregg Realty Company and holds only the bare legal title to the property; that the Gregg Realty Company was claiming to be the beneficial owner of the property and that no such claim had ever been' made to George H. Payne or Ada Payne in their lifetime, and the Paynes had never consented to the delivery of their deeds or the passing of this title to anyone other than D. D. Moorehouse.
It was further alleged the Kansas City property was not owned by D: D. Moorehouse, but by the Gregg Realty Company, and that had the Paynes known that D. D. Moorehouse did not own the apartment, or that it was actually owned by the Gregg Realty Company, they would never have executed the deeds in question or made the exchange. A tender of a deed to the Kansas City property back to the Gregg company was alleged.
The appellants answered with a general denial and denied specially that the Paynes had any interest in the Neosho county property. They also alleged that the claim of appellees was barred by the statute of limitations and that they were guilty of laches and were estopped from setting up the claim which was alleged in the petition. Trial was to the court.
Findings of fact and conclusions of law were made as follows:
“The court finds from the evidence, and also from the admissions in the pleadings (the allegations of agency in plaintiffs’ third amended petition, not being denied under oath), that defendant, the Gregg Realty Company, was the agent of George H. Payne and Ada Payne in the contract of exchange of the Neosho county, Kansas, farm and city property hereinafter described, for the Kansas City, Mo., property described in said contract of exchange and hereinafter described; the court further finds that defendant, the Gregg Realty Company, was at the time of the exchange of properties the owner of said Kansas City, Mo., property, standing of record in the name of D. D. Moorehouse, its ‘straw’; the court finds that the said George H. Payne and Ada Payne had no knowledge of the fact that the defendant, the Gregg Realty Company, was at the time of the exchange of properties the owner of the said Kansas City, Mo., property; and further finds that defendant, the Gregg Realty Company, continued the agent of said George H. Payne and Ada Payne in the management of the said Kansas City, Mo., property and the collection of rents, and the agent of Ada Payne, the widow of George H. Payne, deceased, in the renewal of the loan on said Kansas City property.
“The court further finds from the evidence that defendant, the Gregg Realty Company, sustained a fiduciary relation to the said George H. Payne and Ada Payne during the lifetime of said George H. Payne, and of Ada Payne thereafter to the time of the due tender of deed of Ada Payne to D. D. Moorehouse of the Kansas City, Mo., property, through the Gregg Realty Company, about July 23, 1928.
“The court from the evidence finds that defendant, the Gregg Realty Company, without the knowledge of George H. Payne and Ada Payne, the grantors, caused to be substituted as grantee in the deeds of George H. Payne and Ada Payne to the said Neosho county property the name of H. T. Adams for D. D. Moorehouse, each a ‘straw’ for defendant, the Gregg Realty Company.
“The court from the evidence finds that George H. Payne at the time of his death had no knowledge of the fact that the Gregg Realty Company was the owner of the said Kansas City, Mo., property at the time of the exchange of properties; or that the name of H. T. Adams had been substituted in said deed as grantee for D. D. Moorehouse. The deed of D. D. Moorehouse to the Kansas City, Mo., property was not delivered to George H. Payne and Ada Payne or either of them, but was retained by defendant, the Gregg Realty Company.
“The court from the evidence further finds that Ada Payne and plaintiffs herein had no knowledge of the fact that defendant, the Gregg Realty Company, was the owner of the Kansas City property at the time of the exchange of properties, or that the name of H. T. Adams had been substituted as grantee in the deeds of George H. Payne, and Ada Payne for D. D. Moore-house, until on or about July 20, 1928, soon prior to the commencement of this action July 24, 1928.
“The court further finds that defendant, the Gregg Realty Company, by and through its agents and representatives, among them W. E. Solomon, fraudulently and with the intent and for the purpose of deceiving, cheating and defrauding said George H. Payne and Ada Payne out of the said Neosho county property by exchanging for said Kansas City property, concealed its ownership of the Kansas City property, misrepresented the ownership of the Kansas City property, misrepresented the value of the Kansas City property, misrepresented the expense of the upkeep of the Kansas City property, misrepresented the returns on the Kansas City property, and misrepresented the situation as to the renewal of the encumbrances on the Kansas City property; and did thereby, and further because of its said fiduciary relation to the said George H. Payne and Ada Payne, fraudulently deceive the said George H. Payne and Ada Payne, whereby and because thereof the said George H. Payne and Ada Payne were induced to execute said exchange contract and execute and deliver deeds to the said Neosho county, Kansas, farm and city property to D. D. Moorehouse.
“The court finds the evidence introduced incomplete and insufficient to enable the court to make an accounting as to the different properties involved in this action, if otherwise proper to do so under the issues.
“The court from the evidence finds that plaintiffs are not guilty of laches, as charged by defendants in their amended answer to plaintiff’s third amended petition; that plaintiffs are not estopped from maintaining this action as charged by defendants in said answer; and that the bar of the statute of limitations has not operated against plaintiffs as charged by defendants in said answer.
“It is by the court adjudged and decreed that the two deeds of George H. Payne and Ada Payne, executed on or about the 30th day of July, 1926, to the Neosho county, Kansas, farm and city property, respectively, hereinafter described, in which defendant, H. T. Adams, appears as grantee of record in the office of the register of deeds of Neosho county, Kansas, in b’ook 98 of deeds in said office, be and they are each hereby vacated, canceled, set aside and held for naught.
“Plaintiffs, Alta Belle Payne, Hazel Whitworth, Mabel Fiedler, Verne V. Payne, Floyd O. Payne, Clyde Payne and .Guy Payne, are by the court adjudged and decreed the owners of said Neosho county, Kansas, farm and city property described as follows:
“ ‘The south one-half _(S%) of the northeast quarter (NE14) and lots one. (1) and two (2) of section three (3), township twenty-eight (28) south, of range twenty (20) east of the sixth principal meridian, containing 161.35 acres, more or less, according to government survey, situated in the county of Neosho and the state of Kansas; and
‘The south three (3) feet of lot nine (9) and all of lots twelve (12) and thirteen (13), block five (5), George’s addition to the city of Erie, Neosho county, Kansas, according to the recorded plat thereof.’
“Defendants H. T. Adams and the Gregg Kealty Company, and each of them, are forever barred of any and all right, title, claim and interest in and to said described Neosho county, Kansas, farm property and city property and each of them. This judgment and decree to operate to vest title to said Neosho county, Kansas, farm and city property and each of them in said plaintiffs in equal portions, and plaintiffs are entitled to the immediate pos session thereof. Defendants and each of them, and all parties claiming by, through or under them, are ejected from said premises and every part thereof.
“It is by the court further adjudged and decreed that the deed of D. D. Moorehouse to George H. Payne and Ada Payne dated about July 13, 1926, to the west forty-three (43') feet nine inches (9") of the east seventy (70') feet nine (9") inches of lots forty-six (46) and forty-seven (47), and the north fifteen feet (15') of the west forty-three (43') feet nine (9") inches of the east, seventy (70') feet nine (9") inches, block eight (8), Vanderbilt place, an addition in Kansas City, Jackson county, Missouri, as shown by the recorded plat thereof, be and the same is hereby canceled, set aside and held for naught; that plaintiffs and each of them are forever barred of any right, title, claim or interest in and to the said described Kansas City, Mo., property, and that defendant, the Gregg Realty Company, as against plaintiffs, is entitled to the immediate possession thereof.
“It is by this court further ordered and decreed that the deed of Ada Payne of July 20, 1928, conveying to D. D. Moorehouse the premises last described, which deed was on or about the 23d day of July, 1928, and prior to the commencement of this action, tendered to defendants, and now in the possession of the clerk of this court, on written application therefor by defendant, the Gregg Realty Company, said deed shall be by said clerk delivered to defendant company, or to whomsoever said defendant company may in writing direct.”
It will be noted that one of the grounds on which the trial court set the deed aside was that appellant traded property of its own to appellees for their property, the conveyance of which is sought to be set aside here, while acting as agent for the Paynes, under the pretense that it actually belonged to a third party.
Appellant argues that there was no fiduciary relationship between it and Mr. and Mrs. Payne and that hence there was no reason why it could not sell the property to the Paynes while acting as their agent under the pretense that the property belonged to another, when as a matter of fact it belonged to appellant.' What the argument amounts to is that a contract whereby an agent agrees to find a buyer for a piece of real estate in behalf of another is not such a contract as to create a fiduciary relationship. This court has held otherwise on that point. (Krutz and Campbell v. Fisher, 8 Kan. 90; Fry v. Platt, 32 Kan. 62, 3 Pac. 781; Shaffer v. Lindsay, 114 Kan. 22, 216 Pac. 1086.) The above cases are authority for the rule that one employed in a fiduciary capacity is precluded from dealing in the property which is the subject of the relationship. In the case at bar the evidence was conclusive that the Paynes would never have entered into the contract for the exchange of the properties had they not believed that D. D. Moorehouse was the owner of the Kansas City property and appellant was acting in good faith as their agent.
Appellant argues that the fact that the agency pleaded in the petition was not denied under oath should not be held to bind them in this case. Since there is ample evidence to justify the court in holding that a contract of agency existed which created a fiduciary relationship between the Gregg Realty Company and the Paynes, it will not be necessary to pass on that question.
Appellant points out a letter written to Mr. Payne about a year after the transaction occurred, in which an employee of the Gregg Realty Company warned Mr. Payne that he had been cheated, and advised him as to what action he should take. It is pointed out that after receiving this letter the Paynes went ahead and had dealings with appellant, which it is claimed constituted a waiver of the fraud charged. All that the refusal of the Paynes to act on this letter indicates is that the company still had the Paynes deceived.
We conclude that there was ample evidence in the record to sustain the findings of the trial court heretofore referred to of the fraud practiced on the Paynes by the appellant. In fact, the entire transaction was so permeated with fraud from its inception as to render it difficult to detail all of it without unduly lengthening this opinion.
The findings and conclusion of the district court are approved and the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought in the probate court by the administrator of the estate of Henry Mahannah, deceased, in which Emma Briles was charged with concealing, embezzling and conveying away property and effects of the estate of the deceased which should have been delivered to the administrator. A citation was issued and upon a hearing in the probate court a decision adverse to the claim of the administrator was rendered. An appeal was taken to the district court, and after a hearing there the decision was in favor of Emma Briles and against the administrator. From that decision he has appealed to this court.
The administrator alleged that Henry Mahannah was ninety-one years old when he died; that for thirteen years prior to his death he had been blind and deaf, during which time Emma Briles had been his confidential agent, writing his letters, making deposits for him in a bank, drawing cheeks and transacting most of his business. Plaintiff alleged that after the death of Mahannah, Emma Briles presented a check and drew from the bank $600 belonging to the estate; that he had made demand for the return of that money, which had been refused by the defendant. She answered denying concealment or misappropriation of any money of Henry Mahannah, and that all the property and effects in her possession had been turned over to the administrator. She also denied she had wrongfully withdrawn $600 from the bank that belonged to Henry Mahannah and that the $600 fund was and still is her own property. It was shown that the check drawn in her favor was dated April 29, 1929; that Henry Mahannah died on August 30, 1929. The check was presented to the bank and cashed a few hours after Mahannah’s death. The trial developed that there had been no concealment by the defendant, that defendant took the check which had been issued months before his death and obtained the money out ofMahannah’s account, a few hours after his death, and this money she claims is her own.
The trial court found that there was no concealment or embezzlement and that as she claimed to be entitled to the fund the right to try the controverted question as to its ownership could not be determined in this summary proceeding. The statute under which the proceeding was brought reads:
“Upon complaint made to the probate court by the executor, administrator, creditor, devisee, legatee, heir, or other person interested in the estate of any deceased person, against any person suspected of having concealed, embezzled, or conveyed away any money, goods, chattels, things in action, or effects of such deceased, the said court shall cite the person suspected forthwith to appear before it and to be examined on oath or affirmation touching the matters of the said complaint.” (R. S. 22-1301.)
This statute has been interpreted and it has been held that its purpose was for discovery of concealed assets of an estate and to compel the delivery thereof to the administrator, and that where there was no concealment and there was a question of contested right of ownership in property between the administrator and another party, the probate court was not the forum in which to litigate the contested claim. Such a question, it has been held, must be adjudicated in a court of competent jurisdiction where a contested party may have a jury trial. (Humbarger v. Humbarger, 72 Kan. 412, 83 Pac. 1095; Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642; Leyerly v. Leyerly, 87 Kan. 307, 124 Pac. 405; Yockey v. Yockey, 95 Kan. 519, 522, 148 Pac. 665.) Here there was a contest whether the defendant was the rightful owner of the fund of $600 or whether it was a part of the estate and subject to the disposition of the administrator. Defendant’s ownership may be ill- or well-founded, but the probate court had no jurisdiction to try the contested ownership of the fund and to determine the ultimate rights of the contesting parties. When the appeal brought the case to the district court that court could only exercise the jurisdiction of the probate court, and therefore could not determine the contested ownership in the summary proceeding brought by plaintiff.
The judgment is affirmed.
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The opinion of the court was delivered by
Sloan, J.:
This is an action to quiet the title of the state to a part of the abandoned bed of the Kansas river adjacent to land owned by the defendants, who claim from the meander line to the center line of the old channel. The court decreed about one-half of the land in question to the defendants. From this judgment the state appeals.
The defendants contend that the title to the land adjudged to be vested in them was acquired by virtue of accretion to land owned by them adjacent to the river. The state contends that the river bed was abandoned by avulsion, and that the title to the entire river bed is vested in the state.
The Kansas river prior to 1903 followed the same course as when surveyed by the government in 1862. It passed through township 10, range 12, and formed two large ox-bow loops before leaving the township. The defendants and their predecessors in title were riparian landowners. They owned lots 1 and 2 in section 22, being a narrow strip of land over a half mile long on the east side of the river. Prior to 1903 the main current of the river flowed along the left bank, on the outside of the curve, which was the west boundary line of the land owned by the defendants. This bank was abrupt, definite, and certain, and there had been no substantial change since the government survey. In the spring of 1903 a flood occurred which covered the whole river bed and adjacent lowlands. As the water receded the river cut straight across the two loops, making a new channel about a mile south of the defendants’ land. The cutting of the new channel was sudden and violent. The river before the flood was from 600 to 700 feet wide. After the flood and the cutting of the new channel the old channel continued to carry some water. In 1904 the stream was about 150 feet in width. This, however, grew less and less until at the time of the trial there was only a small creek-like stream about the center of the old channel. As the river bed dried vegetation made its appearance. When high water came it backed up the old channel and deposited dirt, mud and sand which was held by the weeds and willows growing in the bed of the old channel. About the year 1914 the defendants or their predecessors in title began to clear the old river bed of willows and other vegetation and farm it to crops. At the time of the trial the land was farmed to the center line of the old channel.
In the journal entry of judgment the court found:
“2. That the defendant Henry Stockman is the owner of a portion of the real estate in controversy in section 22, township 10, range 12, east of the sixth P. M. in Pottawatomie county, Kansas, hereinafter referred to as ‘accretion to lots 1 and 2, section 22-10-12,’ and particularly described as follows: . . . [a strip of land commencing along the 1862 meander line, 200 feet in, following the west line of defendant’s land toward the center of the old channel] . . .”
“3. The court further finds that the plaintiff, the state of Kansas, is the owner of all of the real estate referred to in plaintiff’s petition, except the lands described in finding 2 hereof as ‘accretion to lots 1 and 2, section 22-10-12,’ and is entitled to judgment quieting its title thereto against all the defendants herein. The court further finds said lands are the abandoned channel of the Kansas river, and that said channel of said river has heretofore been suddenly changed and altered by such stream establishing a new channel by flood and avulsion, and that the auditor of state has power, and it is his duty, to survey and sell the same according to law. . . .”
Whether the course of a stream is changed by accretion or avulsion is a fact to be .determined from the evidence, construed, of course, in accordance with the well-established principles of law relating thereto. The evidence clearly establishes the fundamental facts upon which this case must be determined.
First, prior to 1903 there were no accretions to the land of the defendants. There had been no substantial change in the bank adjacent thereto since the government survey in 1862. In their brief the defendants say: .
“Prom 1903 after the flood until June, 1909, the water in what is now claimed to be the abandoned bed of the Kansas river would rise and fall with each rise and fall of the river, which rises and falls affected not only what is now claimed as the'abandoned bed of the Kansas river, but also the new channel. It was during this period of time that the claimed accretion was added to lots 1 and 2 now owned by the defendant, Henry Stockman.”
Second, in 1903 there was a sudden, violent irruption of the water caused by flood which submerged the lowlands to the west and south of the land in question, whereby a new channel was cut and the old channel deserted. This is not only clearly established by the evidence, but is the conclusion reached by the trial court as set out in the journal entry of judgment as follows:
“The court further finds said lands are the abandoned channel of the Kansas river, and that said channel of said river has heretofore been suddenly changed and altered by such stream establishing a new channel by flood and avulsion.”
Third, the evidence shows quite clearly that after the avulsion the old channel was no longer the main stream of the river, but that it rapidly receded and by 1909 was only a small creeklike stream carrying the water of a small creek or creeks which originally flowed into the river. The abandoned river bed was filled in with mud, silt and sand deposited by the backwaters of the new channel in times of high water. These deposits were made on the river bed and did not accrete to the river bank.
The trial judge viewed the premises during the trial of the case, and there was slight evidence tending to show an accretion to the bank. The circumstances, however, surrounding the visit of the trial judge to the premises and his statement with reference thereto are such that the conclusions drawn therefrom are not entitled to any consideration. There is no substantial evidence to establish that there was any accretion to the defendants’ land.
The law relating to accretion and avulsion has been quite clearly established in this jurisdiction. In the case of Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, this court covered practically the entire field of the law on this subject, and in that case said:
“New formations arising from the bed of a river belong to the owner of the bed, and new formations added to a bar or an island in the channel of a river by the process of accretion or reliction belong to the owner of the island or bar.” (Syl. f 5.)
“. . . If the channel fill up from the bottom, without accretion to or reliction from either side, the boundary is the center of the channel as it was before the water left it.” (Syl. ¶ 9.)
“If from storm or flood or other known violent natural cause there be a sudden, visible irruption of the water, whereby the lands upon one side are degraded or submerged or a new channel is cut for the stream, the boundary remains stationary at its former location, and the boundaries of riparian owners whose lands have been affected remain unchanged.” (p. 521.)
“Accretions must consist of deposits formed against, and added to, the bank.” (p. 544.)
The case of Fowler v. Wood, supra, was followed in Craig v. Leonard, 117 Kan. 376, 232 Pac. 268.
The writer in 45 C. J. 530 says:
“Avulsion is the sudden and rapid change of the channel of a stream which is a boundary, whereby it abandons its old and seeks a new bed . . . The slow drying up of the old channel during a period of years after a sudden change does not make the abandonment of the channel of the river any the less an avulsion.”
In Stockley v. Cissna, 119 Tenn. 135, 137, the ninth section of the syllabus reads:
“Where a river suddenly makes for itself a new channel, there is no less an avulsion because the old channel does not immediately dry up, aiid ten years or more elapse before all the water therein disappear.”
In A. G. Wineman & Sons v. Reeves, 245 Fed. 255, 259, the court said:
“A result of such an adoption, by the river of a new channel was that the center line of the old channel, which before was a. boundary subject to change of location, became a fixed and unvarying boundary, unaffected by changes afterwards occurring in either the new channel or in the old bed of the river around Walnut Bend. The circumstance that, after the change of channel was effected, that old bed was still under water, did not prevent or delay the transformation of the former middle line of the channel around the bend from a shifting to a fixed boundary. That boundary was no longer subject to be affected by changes in the old river bed, or in its shore lines as they formerly existed.”
The application of the established rules of law to the evidence in this case brings us to the conclusion that the change in the channel of the river was sudden and rapid — was an avulsion as distinguished from an imperceptible change, or an accretion. It must be controlled by the laws of avulsion. There is no middle course. It is not an answer to say that some water ran in the old channel until it finished drying up. The cause was the violent irruption of the water cutting the new channel — avulsion; the result, the drying up of the old channel through natural processes. Avulsion leaves property boundary lines undisturbed.
The judgment is reversed, and the cause is remanded with instructions to render judgment for the state as prayed for in its petition.
Harvey and Smith, JJ., not sitting.
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The opinion of the court was delivered by
Sloan, J.:
This is an action to recover damages for slander. The trial court sustained a demurrer to the plaintiff’s evidence. He appeals.
The petition was, filed June 12, 1929, alleging that on the 15th day of June, 1928, while the plaintiff was in a helpless position as a witness in a case being heard -in the district court of Wyandotte county, the defendant, a regular practicing attorney, uttered and published in the court room a false and malicious statement. On November 14, 1929, the court made an order sustaining a general demurrer to the petition. No appeal was taken from this order. An amended petition was filed December 12, 1929. The defendant answered, alleging a general denial and that the cause of action stated in the amended petition was barred by the statute of limitations. The cause proceeded to a trial. At the close of plaintiff’s testimony the defendant demurred on three grounds: first, that the action was barred by the statute of limitations; second, that the evidence failed to show any special damages suffered by the plaintiff by reason of the alleged defamatory utterances; and third, that the alleged defamatory utterances were shown by plaintiff’s evidence to be privileged. The court sustained the demurrer.
If the petition did not state a cause of action the cause is barred by the statute of limitations. (R. S. 60-306.) May this court, when the statute of limitations is a defense, examine a petition against which a demurrer has been sustained and no appeal taken therefrom for the purpose of determining whether the amendments relate back to the filing of the petition?
This court is definitely committed to the rule that an action, for the purpose of computing the statute of limitations, is not deemed commenced until the filing of a petition which states a cause of action.
In Cunningham v. Patterson, 89 Kan. 684, 685, 132 Pac. 198, this court said:
“In this state an action is deemed not to be commenced, for the purpose of interrupting the running of the statute of limitations, until a petition is filed which states a cause of action. A petition which is subject to a general demurrer is regarded, in this respect, as being no petition at all. (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, 3 L. R. A., n. s., 259; Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254.)”
See, also, to the same effect, Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Commercial Nat’l Bank v. Tucker, 123 Kan. 214, 254 Pac. 1034; Burger v. First Nat’l Bank, 124 Kan. 23, 257 Pac. 979; Annis v. Warner, 126 Kan. 127, 266 Pac. 935.
This court has held that if the original petition, although informally and defectively, states facts which aided by reasonable inference constitutes a cause of action, an amendment only ampli fying or making more specific the allegations in the petition will i’elate back to the beginning of the action. (Bradley v. Pinney, 77 Kan. 763, 93 Pac. 585; Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657; Fox v. Turner, 85 Kan. 146, 116 Pac. 233; Ballard v. Railway Co., 95 Kan. 343, 148 Pac. 764; Smart v. Mayer, 107 Kan. 203, 191 Pac. 273.)
The records of this court are replete with decisions holding that it cannot review a ruling on a demurrer unless an appeal is taken therefrom within six months from the date of the rendition of the order sustaining the demurrer. (Civ. Code, § 572; Slimmer v. Rice, 99 Kan. 99, 160 Pac. 984; Buzbee v. Morstorf, 105 Kan. 270, 272, 182 Pac. 644; Dyer v. Johnson, 109 Kan. 338, 198 Pac. 944; King v. Stephens, 113 Kan. 558, 215 Pac. 311.)
The law of this state is that an order sustaining a demurrer to a petition on the ground that it does not state a cause of action, made after the lapse of the period fixed by the statute of limitations, is in effect an adjudication that the action was not commenced in time and is barred by the statute of limitations and, unless appealed from within the time prescribed by law, cannot be reviewed by this court.
This disposes of the case and it is not necessary to consider the other questions suggested by the appellant.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the district court entering a mandate from this court and from an order overruling plaintiff’s motion for judgment in accordance with the mandate, and to have entered an order sustaining plaintiff’s demurrer to defendants’ answer, and requesting the court to render judgment in favor of plaintiff as prayed for in its petition.
Originally the action was one to recover taxes for rural high-school district purposes paid by plaintiff under protest. The rural high-school districts had levied a tax of eight mills for general purposes. Plaintiff contended that six mills was all that the school district could lawfully levy. Plaintiff paid its taxes under protest and brought this action to recover the amount of the two mills alleged by plaintiff to have been unlawfully levied for general purposes. Defendants answered, setting up the statute under which they claimed they were authorized to make the levy which was made. Plaintiff demurred to the answer. The demurrer was overruled. Plaintiff appealed. This court, in an opinion reported in 130 Kan. 509, 287 Pac. 262, analyzed the statutes under which defendants claimed the levy was made, and, having fully considered the case, concluded:
“The defendant school district did not have the right to levy more than the six mills for general purposes. Plaintiff is entitled to recover the excess levy to the amount of two mills. . . . The.cause is reversed with instructions to the trial court to sustain the demurrer to defendants’ answer and for further proceedings in accordance with this opinion.” (p. 515.)
The mandate from this court reached the clerk of the district court on May 29, 1930. On May 31, 1930, the judge of the district court entered upon the trial docket of the court the following: “May 31, 1930, mandate entered. Judgment for defendants for costs.”
That was the last day of the March, 1930, term of court. The June term of court convened June 2, 1930, and the November term convened November 10,1930. On November 17, 1930, plaintiff filed in the district court its motion for—
“. . . the court to proceed in accordance with the. judgment of the supreme court of Kansas in this cause and enter an Order sustaining plaintiff’s demurrer to defendants’ answer, and to render judgment in favor of the plaintiff in accordance with the prayer of its petition herein.”
That motion came on for hearing on November 21, 1930, and after argument of counsel the court entered on its docket:
“Motion filed November 17 is sustained by a nunc pro tunc order sustaining the demurrer to the answer of the defendants and correcting the apparent error of judgment for defendants for costs which was intended and should be judgment against defendants for costs. Motion overruled as to other parts.”
The court refused to enter judgment for plaintiff for the recovery of the two mills excessive taxation, amounting to $659.23, on the ground that no request was made by plaintiff for such judgment until it filed its motion of November 17, and for the further reason that the cause was not continued at the March nor at the June, 1930, term of court, for which reason the court had no jurisdiction to render such judgment.
Plaintiff has appealed both from the order entered by the court on May 31 in its trial docket, and also from the order of the court of November 21 overruling its motion.
Under our statute (R. S. 60-3330) and under numerous decisions of this court (McDonald v. Swisher, 60 Kan. 610, 67 Pac. 507; Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119; Lynn v. McCue, 99 Kan. 400, 161 Pac. 613; Forbes v. Madden, 102 Kan. 46, 169 Pac. 211; Watson v. Watson, 110 Kan. 326, 203 Pac. 714), it was the clear duty of the trial court to proceed in conformity to the order and judgment of this court. Clearly that was not done. The entry on the trial docket of May 31 was not a compliance with the mandate of this court. It appears that no entry of any ruling made at that time was made on the journal of the court. The matter was still pending there undetermined notwithstanding the fact that no particular order was made continuing it to the June term or to the November term of court. Under the mandate of this court it was the duty of the trial court to sustain plaintiff’s demurrer to the answer of defendants and to proceed in accordance with the judgment of this court. The judgment of this court was that defendants did not have the right to levy more than six mills for general purposes, and that plaintiff was entitled to recover the excess levy to the amount of two mills. That was the judgment of this court which the mandate directed the trial court to carry out. It is possible that after the demurrer to defendants’ answer was sustained they would have desired to plead further, but there is no intimation in this case that defendants had any other defense than the statutes which they pleaded, and which were construed by this court adverse to their contention. Defendants made no request to plead further, nor did they suggest they had any other or different defense. The result is that plaintiff was entitled not only to have its demurrer sustained to the answer of the defendants, but was entitled to have judgment for the amount of the tax collected under the two mills excessive levy.
The judgment of the court below is reversed, with directions to enter judgment for plaintiff for the amount of the taxes paid by it and represented by the excessive two mills levy.
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The opinion of the court was delivered by
Hutchison, J.:
This appeal is by the defendant from a judgment rendered against him, restraining and enjoining him from maintaining a veterinary hospital on a certain lot in the city of Fort Scott, and from keeping or treating diseased animals on such premises.
The action was commenced in the district court of Bourbon county by the city of Fort Scott, a municipal corporation, against J. W. Brown, a veterinary surgeon, alleging that the defendant operates a veterinary hospital on a certain lot in the city of-Fort Scott where diseased animals are treated and kept for treatment; that the lot is situated in the resident district of the city and that many families live adjacent to and near the lot on which the hospital is located; that in addition to the hospital there are kept on the same lot many dog pens where defendant treats and keeps for treatment diseased dogs; that many people each day travel over and upon the sidewalk and street adjacent to this lot, which is located on the corner of two streets; that the diseased dogs whine, bark and howl both day and night, and grievously annoy, disturb and keep awake people residing in the vicinity; that operations are performed upon the animals in sight and hearing of the near-by residents and those traveling on the sidewalk and street near the lot; that diseased tissues from the diseased animals are allowed to remain on the premises, all of which cause offensive odors and make the premises insanitary and a public nuisance.
The answer consists of a general denial and a specific denial that he operates a veterinary hospital on said lot where diseased animals are treated or kept for treatment, and allegations that the action is not brought by the city nor in good faith but by parties conspiring against him with a design to ruin his business and compel him to sell his property, and that other veterinary surgeons are operating their offices and hospitals in the resident district of the city and within two blocks of his place of business. After hearing all the evidence, the court found in favor of the city on the issues joined by the pleadings and rendered judgment against the defendant, enjoining him, as stated above, from maintaining a veterinary hospital on the lot and from keeping or treating diseased animals on these premises.
The theory of the defendant, as expressed in the record, is “that this action is actuated by prejudice and malice, and not based upon the police power of the city at all, but simply a scheme to drive this man from the legitimate practice of his profession,” and the ap pellant alleges that the decision of the trial court is contrary to the law and evidence and is not supported by the evidence.
The appellant forcibly argues the invalidity of a certain ordinance of the city of Fort Scott, making it a criminal offense to maintain a veterinary hospital within the resident portion of the city, but this action is one in equity and does not depend upon the validity of a city ordinance. An injunction to abate a public nuisance might be granted if the facts justified it, regardless of the force, effect or validity of an ordinance attempting to make such nuisance a crime.
No ordinance is mentioned in the pleadings. Therefore the plaintiff does not and cannot rely upon any ordinance to support its claim of public nuisance or offensive nature and character of the premises. So, as far as this case is concerned, it is as if no ordinance had ever been enacted, and the validity or invalidity of some ordinance that seems to have been passed is immaterial. No evidence was introduced concerning an ordinance and no reference was made to one in the finding of. the trial court.
The important features of the case upon appeal are the errors assigned as to the decision being contrary to law and not being supported by the evidence.
The case of Kansas City v. Serum Co., 87 Kan. 786, 125 Pac. 70, was an action by a city for an injunction to restrain the defendant from hauling garbage through the streets of the city and from maintaining hog pens in the neighborhood where people resided, and it was held:
“The allegations of the petition on a demurrer to which the defendants elected to stand, taken as true, showed that a large number of hogs were kept adjacent to the city in such a manner that odors from the place and from garbage hauled thereto were offensive to the people living in the neighborhood and to those who passed along the streets, and offensive to such an extent as to impair the health of citizens and diminish the value of their property. Held, to constitute a nuisance, the continuance of which should be perpetually enjoined.” (Syl.)
In the case of Winbigler v. Clift, 102 Kan. 858, 172 Pac. 537, it was held that a horse and mule market, kept in close proximity to another’s residence, was a ground for an injunction by such resident, and that a business may be conducted under such conditions as will constitute it a private as well as a public nuisance.
In a more recent case it was held:
“The maintenance of howling, barking and whining dogs on premises, kept in an insanitary condition, to the continuous annoyance and discomfort of surrounding neighbors so that their rest is broken, sleep interrupted, and their reasonable use and enjoyment of their property disturbed, is a nuisance subject to be enjoined.” (State, ex, rel., v. Stillwell, 114 Kan. 808, syl. ¶ 1, 220 Pac. 1058.)
There can be no doubt as to the right of the city to maintain such an action and to abate a public nuisance by means of injunction, and the allegations of the petition certainly state a cause of action, such as will justify the issuance of an injunction order if the evidence is sufficient to support those allegations.
There was some evidence on substantially every ground alleged in the petition, and there was conflicting evidence on nearly every point. Under such circumstances there is only one duty left for this court to perform on appeal, and that is to determine whether there was any evidence on each of the essential points. We cannot weigh the evidence where there is a conflict. That was the duty of the trial court.
As stated above, the record shows some evidence on every necessary point for the city to establish and whether questionable or not, since it was believed and abcepted by the trial court, that is sufficient to support the decision. This rule was concisely stated in the case of Hoff v. Hoff, 106 Kan. 542, 189 Pac. 613, as follows:
“. . . that the determination of issuable facts is the exclusive province of the trial court, and that such determination will not be disturbed on appeal when there is substantial though controverted evidence to support the trial court’s findings and judgment.” (Syl. If 1.)
The following are some of the many other rulings on the same subject:
“Rule followed that where questions of fact have been determined by the trial court upon substantial and competent evidence, such determination is conclusive on appeal.” (Wideman v. Faivre, 100 Kan. 102, syl. ¶ 2, 163 Pac. 619.)
“The determination of issuable facts is the province of the trial court and its determination thereon will not be disturbed on appeal where there is substantial evidence to support the trial court’s findings and judgment.” (Bateman v. Preisser, 123 Kan. 217, syl. ¶ 2, 254 Pac. 1028.)
“A general finding of fact made by the trial court on conflicting evidence will not be disturbed on appeal where there was evidence to support the finding made by the court.” (Keister v. First Nat’l Bank, 126 Kan. 495, 268 Pac. 820.)
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by W. R. Yerkes against the Kansas Pipe Line & Gas Company to recover damages sustained from a fire alleged to have been negligently started by the defendant. A demurrer to plaintiff’s evidence was sustained by the court, and from that ruling plaintiff appeals.
The defendant was constructing a pipe line along the south side of plaintiff’s land on which there were trees, shrubs and a nursery. On March 12, 1929, a fire originated on or near the pipe line where there were dead grass and weeds, and when a strong wind was blowing from the south the fire spread northward over plaintiff’s land, destroying the trees and shrubs growing thereon. There is no dispute as to the extent of the loss occasioned by the fire, but there is a controversy as to the origin of the fire, and.whether it was due to the negligence of the defendant. Plaintiff alleged, in substance, that the defendant by and through its employees, who were engaged in the construction of the pipe line, carelessly and negligently set out the fire in the dry grass along the line. Although questioned, the averment appears to be sufficient to charge that the fire originated through the action and negligence of the defendant. Proof was produced by plaintiff tending to show that the fire originated on the line where the defendant’s employees were at work. A part of their work was the cutting and welding of pipes that were being laid, and in doing this acetylene torches were used. These torches and the blower, when in use, threw a fire a short distance from the pipe on which the welders were operating. When the fire started welders and other employees of defendant at once made an effort to put out the fire, in which the whole force, about sixty in number, joined in fighting the fire, but were unable to extinguish it before the damage mentioned was done.
No specific testimony of any witness was given that he saw the sparks ignite the dry grass, but a reading of the testimony shows that the fire started near to where welding was being done and where sparks were flying. There was some inconsistency in the evidence of witnesses, but if there was competent evidence fairly, supporting the plaintiff’s cause of action the court was not justified in sustaining a demurrer to the evidence. Ben Guthrie, the foreman of the defendant in charge of the work, was called as a witness by plaintiff and after testifying to certain facts relating to the pipe-laying process and the fire in question, gave testimony on cross-examination to the effect that no welding was done in the area of the fire, and other testimony to the effect that the fire could not have originated from torches used by the welders. He was not present at the place where the fire started, and his testimony that there was no welding done when and where the fire started was refuted to some extent by other witnesses who found upon taking up the pipe that welds, twelve in number, had been made along where the fire started. The fact that there were some inconsistencies or contradictions in the testimony of plaintiff’s witnesses did not warrant the court in sustaining a demurrer to the evidence, if all he produced, direct and circumstantial, favorable to him taken together fairly tended to prove the material facts necessary to make a prima facie case. In Kansas City, Ft. S. & G. Rld. Co. v. Foster, 39 Kan. 329, 18 Pac. 285, syl. ¶ 1, it was decided:
“Where a plaintiff introduces evidence sufficient to prove all the material facts of his case prima facie, some of which facts, however, are proved only by circumstantial evidence, and also introduces the direct testimony of one witness contradicting some of the facts proved by this circumstantial evidence, and no other evidence is introduced in the case, the court may rightfully overrule a demurrer to the evidence, and may also rightfully sustain a verdict found by the jury in favor of the plaintiff upon the evidence.” (See, also, Jansen v. City of Atchison, 16 Kan. 358; Wingfield v. McClintock, 85 Kan. 207, 113 Pac. 395; Davis v. Railway Co., 104 Kan. 604, 180 Pac. 195.)
In its brief the defendant concedes that if plaintiff had offered testimony sufficient to establish the essential elements of his case, the fact that some of his witnesses on cross-examination contradicted their direct examination, or contradicted other witnesses as to certain facts, would not justify the court in sustaining a demurrer to the evidence, but it contends that a prima facie case was not established that the fire originated from any negligent act for which the defendant was liable.
Although the evidence did not show the particular manner nor the moment in which the fire originated, there seems to be evidence enough to take the case to the jury. It was shown that the defendant was using fire at or near the place where the fire started. Torches that had been used by the welders were found at the place. There was dead inflammable grass at the place, which had been ignited, and the fire had been carried by the wind across the plaintiff’s premises. No other origin or agency for the starting of- the fire appeared. The origin of such fires is largely to be shown by circumstantial evidence. The circumstances here appear to us to afford a reasonably adequate cause of the fire and to warrant an inference that it originated from the sparks emitted from the torches defendant was using at the place of origin. In Railroad Company v. Perry, 65 Kan. 792, 70 Pac. 876, where there had been a loss by fire, it was shown to have started a few minutes after a train passed at a point where there was dry, inflammable vegetation and the fire was carried by a high wind to the property destroyed, and this evidence, it was held, “is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.” (Syl. ¶ 1.)
In another case in which there was a destruction of hay, from .fire alleged to have originated by a railroad company, it was held:
“Evidence which shows that hay was stacked a few hundred feet from the railroad right of way, that the hay was burned, that fire was seen in the hay at and immediately after the passing of trains, that the wind was blowing hard from the railroad toward the hay, and that the fire burned from the railroad right of way to the hay, is sufficient to compel the court to submit the case to the jury, to warrant the jury in returning a verdict for the plaintiff, and to justify the court in rendering judgment in favor of the plaintiff.” (Stockdale v. Railroad Co., 113 Kan. 635, 215 Pac. 1021.)
See, also, Loftus v. Mill Co., 91 Kan. 856, 139 Pac. 480, and other cases referred to in those cited.
Holding that the evidence was sufficient to require the submission of the case to the jury, the judgment is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Hutchison, J.:
This action was brought to recover damages for the death of plaintiff’s husband resulting from a collision between defendant railway company’s passenger train and an automobile driven by plaintiff’s husband at a private crossing in Greenwood county.
The allegations of negligence were defective crossing, permitting weeds, grass and brush to grow upon the right of way so as to obstruct the view of an approaching train, failure to sound whistle or ring bell to warn deceased of approach of the train, running train at a high and unusual rate of speed, wanton and reckless conduct in handling train) and defective brakes and brake equipment. The answer of the. railway company was a general denial and contributory negligence. The Trial resulted in a verdict by the jury for the defendant railway company, and plaintiff appeals.
The errors assigned all relate to the giving and refusing to give instructions. Two of the instructions refused,, concerning which error is most strongly urged, were those relating to wantonness and the doctrine of the last clear chance.
The deceased was a young married man working for an oil company at a good salary. He was driving, with his sister, from his father’s farm to Madison, approaching the private farm crossing from the east about five o’clock in the afternoon of November 25, 1928, and was struck by the engine of a passenger train coming from the north a little behind time, at the rate of nearly or about fifty miles an hour. The engine struck the right rear fender of the Chevrolet coupé about eighteen inches from the rear of the chassis. The sister was instantly killed; plaintiff’s husband lived only a few hours and died a few minutes after reaching the hospital, and the car was completely wrecked and ruined.
The crossing was described as being very rough, so as to check the speed in crossing it. The ground both on the outside and inside of the rails was not leveled up to the planks next to the rails, and it was like crossing a plank in the road. The track and roadbed were a little below the general level of the ground and some dirt was piled on the east bank on the right of way so that it stood from two to four feet higher than the track and the highway approach to the track east of the crossing. This depression in the highway was gradual across the east part of the right of way starting at the fence. There was a hedge fence at the east side of the right of way on the north side of the highway leading to the crossing. There were weeds, grass and brush on the right of way north of the road and east of the track, described differently as to height and density, and by some witnesses said to have been cleared off in a triangular form next to the intersection so that one on the road could look up the track as he approached very near the crossing. The track is straight for 280 feet north of the crossing. There it begins to bend to the west behind a corn field, which would make it practically impossible for the engineer to see anyone east of the crossing from his train approaching the crossing from the north, and he did not see the automobile before the collision. The fireman saw the automobile from a point about 300 feet north of the crossing when the automobile was in the cut on the road and moving at about five or six miles an hour; he thought the driver would stop, but he did not; the bank, grass and weeds were not high enough to obstruct his view of the automobile; that'the brakes were not applied until about 100 feet from the crossing.
Some photographs said to have been taken the day after the collision, showing the crossing, the driveway and the condition of the bank and weeds on the east right of way and a train on the track 280 feet north of the crossing, were introduced in evidence.
Appellant insists that the conduct of the engineer and fireman in failing and neglecting to sound the whistle and warn the deceased of the approaching train in time for the deceased to have saved himself was wanton negligence showing an indifference for the safety of the deceased, and urges that there was no reason why the engineer should not have seen the automobile of the deceased. The court in the instructions given set out the allegation of wantonness and instructed the jury on wantonness and recklessness in connection with the matter of allowing punitive damages, but did not instruct as requested by the plaintiff as to wanton and reckless conduct on the part of the engineer and fireman in overcoming the effect of contributory negligence. Such instruction should not be given unless there is reasonable and substantial evidence of such wanton conduct.
The only evidence here as to seeing the automobile driven by the deceased is that the fireman did see it from a point 280 feet distant, when he thought, of course, it would stop before going on the crossing, and that the engineer did not see it and could not see it from his position on the engine.
The reasoning of the appellant apparently lacks consistency when it is urged the trainmen could all the time see the automobile, while on account of the bank and weeds the driver could not see the approaching train.
In the case of Railway Co. v. Lacy, 78 Kan. 622, 97 Pac. 1025, it was said:
“. . . That the fact that a collision occurred is not prima jade evidence that it was caused by reckless or wanton negligence. In such a case, before the railway company can be held liable there must be some fact or circumstance in evidence from which the natural and reasonable inference arises that the injury was caused by the reckless or wanton negligence of the employees of the company.” (Syl.)
Applying the term “wanton” to the conduct of trainmen under similar circumstances as in this case, it was said in Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023:
“Enginemen in charge of a locomotive attached to a passenger train, who cut off the steam and apply the air one quarter of'a mile before reaching a street crossing in a small city, and who suppose that an electric warning bell stationed ¿t the crossing is ringing are not guilty of wantonness, although they fail to ring the engine bell or sound the whistle for the crossing, and although they go through the city at the rate of forty-five miles per hour.” (Syl. ¶[ 2.)
The definition given in the case of Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804, is regularly referred to as the one applicable to wanton conduct on the part of agents of railway companies in handling trains. It was there said:
“One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence; his conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that instead of affirmatively wishing to injure another he is merely willing to do so.” (p. 189.)
Another ruling in a railroad case shows plainly wantonness cannot be inferred but should be shown by the evidence where it was held:
“Upon the testimony, that C. was a conscious trespasser, and that there can be no recovery for his death unless the injury was willfully or wantonly inflicted; that under the circumstances, willful or wanton negligence on the part of the engineer could not reasonably be inferred, and that the trial court ruled correctly in sustaining the demurrer to plaintiff’s evidence.” (Campbell v. K. C. Ft. S. & M. Rld. Co., 55 Kan. 536, 40 Pac. 997.)
Unless the evidence was such as to convince the trial court that wantonness was sufficiently shown to become a constituent element of the case, and sufficient to sustain a verdict based thereon, it would be his duty to refuse to give such instruction. We fail to see the element of wanton and reckless conduct in the record as being sufficient under the decisions above cited to justify the giving of the instruction on that subject.
A definition of the doctrine of the last clear chance and the rule as to its application to instances of negligence and contributory negligence will plainly show that the facts in the case at bar are such as to make it inapplicable. The evidence does not show that the contributory negligence of the deceased had at any time discontinued. The last clear chance only applies after such contributory negligence entirely ceases.
“This doctrine can be invoked in negligence cases only where the party relying upon it has by his own prior negligence ¿often himself into a predicament from which his subsequent diligence will not avail to extricate him without injury or damage through the act or delict of another party, but where such other party has a fair opportunity — a last clear chance — -to avert or minimize the accident, injury or damage, by the exercise of reasonable diligence after the negligence of the first party has ceased.” (Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 308, 252 Pac. 472.)
In a very recent case the same definition was applied to the evidence in a street-car case:
“In an action for damages for injuries sustained by plaintiff in being struck by defendant’s street car in a city street midway between street crossings, defendant’s negligence in operating its street car was established by the evidence and so found by the jury. Plaintiff’s contributory negligence was also established and the trial court so instructed the jury, but added that plaintiff might recover notwithstanding her own negligence under the doctrine of the last clear chance. Record examined and held that neither the evidence nor the special findings, nor any circumstances inferable from either, disclosed an opportunity for the application of that rule of law, and the judgment in favor of plaintiff was erroneous.” (Dearing v. Wichita Rld. & Light Co., 130 Kan. 142, 285 Pac. 621.)
Several years ago the rule was applied and clearly stated in the following words:
“The plaintiff was engaged in an active disregard of his own safety up to the last moment when he might have been saved, and consequently has no standing to invoke the doctrine of last clear chance.” (Gilbert v. Railway Co., 91 Kan. 711, 718, 139 Pac. 380. See, also, Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680.)
We find no error in the refusal of the court to give either of these two instructions requested by the plaintiff, nor in refusing to give two others, one as to the burden of proof and the other as to proximate cause, the substance of both of which was given by the court but not in -the exact form requested.
Appellant criticizes instruction No. 4, referring to the weeds being an obstruction and the consequences, and applies the rule of proximate cause and then makes the usual exception as to the deceased being free from contributory negligence. The criticism is that the defective crossing was also a proximate cause and both should have been treated together. The defective crossing was not omitted from the instructions, but there was very little to be said concerning it as a proximate cause while the matter of the bank and the weeds occupied a. conspicuous place in the testimony and particularly needed the application of the rule given in this instruction.
Appellant seriously objects to the frequency with which reference is made in the instructions to the liability of the defendant for its negligence, provided the deceased was not guilty of contributory negligence, and sometimes the expression “free from fault” was used. The use of the latter expression was in such close connection with the definition of contributory negligence that there could be no mistake as to its meaning, and as to the frequency of the general exception it was necessary, for without the exception the application would have been both inaccurate and incomplete.
Parts of several instructions are criticized as incorrect statements of the law and appellant thinks they are not cured by the remainder of the instruction, which includes some qualifications. The rule is that all the instructions are to be taken together and no one instruction or part of an instruction is to be construed by the jury or by this court by itself.
Appellant seriously objects to the use of the disjunctive “or” in the sixteenth instruction, instead of the conjunctive “and,” where the court told the jury—
“If, therefore, you find from the evidence in this case that the deceased, at or immediately prior to said accident, could have seen or heard the approaching train or could have known that said automobile was approaching a railroad crossing, by the exercise of reasonable care on his part in time to have avoided the injury, then you are instructed that the presumption of law that the deceased did exercise ordinary care is overcome . . .”
Appellant argues that the proper rule is that if by the exercise of reasonable care he knew or could have known he was approaching a crossing and by the exercise of ordinary care he could have seen or heard the approaching train, he would be guilty of contributory negligence, holding that the former is not complete in itself, but must be coupled with either seeing or hearing before there is a liability on his part. If we understand the criticism correctly, there is no duty or obligation whatever in driving on a railroad crossing unless the driver did either see or hear the approaching train or by the exercise of reasonable care could have seen or heard it. No authorities are cited in support of this contention, and we are not convinced that it is correct.
Appellant objects to the court singling out the alleged element of speed of the train and telling the jury that the defendant was not limited to any particular speed, except it must have a careful regard for the safety of others. This element of speed was in a succeeding instruction coupled with the ringing of the bell and blowing of the whistle prior to the reaching of the crossing as duties, regardless of statutory requirements, in order to protect life and all to be considered in determining the question of negligence of the defendant.
We have examined every criticism and objection to each and all the instructions given and find no error in them when considered together, which is the only way in which they should be considered.
Several months after the motion for a new trial in this case had been overruled, and appeal taken to this court, the appellant filed a petition for new trial, setting up newly discovered evidence which tended to contradict the evidence of the defendant company with reference to the taking of the photographs of the crossing and the right of way north of the road, on the day after the collision, and to show that instead they were taken at a later date. When the motion came on for hearing the court sustained an objection of the defendant to the introduction of any evidence in support of the petition, and plaintiff appeals from this order by special and subsequent notice of appeal. The journal entry states the objection was sustained for reasons contained in the written objections to the reception of evidence, but we are not advised by either party what those objections were. Having in the record before us a full copy of the petition for a new trial, there appears to be two objections which might justify such ruling considering the objections as if they were in effect a general demurrer to the petition. Those very apparent and natural objections, after carefully reading the petition and considering the evidence already introduced on the trial, as shown by the record, are that the newly discovered evidence is cumulative and for the purpose of impeachment or discrediting the testimony of defendant’s witnesses, which has regularly been held not to be proper ground upon which a new trial should be granted. (See Parker v. Bates, 29 Kan. 597; Lee v. Bermingham, 39 Kan. 320, 18 Pac. 218; Schribar v. Maxwell, 92 Kan. 306, 140 Pac. 865; and Lagneau v. Bource, 101 Kan. 170, 165 Pac. 844.) It is cumulative because some of the plaintiff’s witnesses said, when shown the photographs, that they did not seem to represent the surroundings as they were at the time of the accident, some of them referring to the change as to the weeds, the crossing and the position of the wrecked automobile. A general objection, like a general demurrer, would raise these two and perhaps other objections to the hearing of evidence in support of the petition and perhaps also the question of diligence required and would justify the sustaining of the objection.
Appellee also raised the objection to the review of this feature of the appeal because the. action of the trial court after the appeal had been taken was without jurisdiction and that this question is not listed among the errors assigned for review. We need not pass upon the last-named points, which might be regarded as rather technical, because there was sufficient merit to the ruling on even a general objection to approve the action of the trial court in sustaining the objection.
We find no error in the giving or refusal to give instructions and in refusing to grant a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Sloan, J.:
This was an action to recover on two fire insurance policies. The defendants prevailed, and the plaintiff appeals.
The plaintiff brought suit against the defendant, The FidelityPhenix Fire Insurance Company, claiming a balance of $447.21 on a $4,000 policy, and a suit against the defendant, The Harmonia Fire Insurance Company, to recover a balance of $559.01 on a $5,000 policy. The petition in each case was identical, except the name of the defendant and the amount claimed. It alleged that the plaintiff was the owner of a three-story brick building which was wholly destroyed by fire on February 7, 1929; that the whole amount of insurance on said building was $24,800, and that at the time of the fire the policies were in full force and effect; that the defendant the Fidelity-Phenix company had paid $3,552.79 on a $4,000 policy, and the Harmonia company had paid $4,440.99 on a $5,000 policy; that the defendants knew the building was wholly destroyed; that the amount due on each policy was definite and certain, and that he received no consideration whatsoever for surrendering their claim and asked for judgment for the difference between the amount paid and the face of the policy, together with interest and attorney fees. The defendants answered, admitting the execution of the policies and that the policies were in full force and effect on the date of the fire; that the defendants, together with other insurance companies, had insured the property in question to the amount of $24,800; that the plaintiff and the defendants disagreed as to the amount of loss and damage sustained and they, with other insurance companies, agreed in writing that the loss and damage to the building insured by the defendants should be determined by three disinterested appraisers; that the appraisers were selected by the parties as provided by the terms of the policies, who appraised the loss and damage to the building and found it to be $22,027.32, which amount was apportioned among the companies according to the amount of insurance held by each of them. A copy of the agreement was attached to the answer.and also copies of the receipts showing that the plaintiff accepted the amount of the award and receipted therefor. When the case came on for trial the trial court made the following statement:
“It seems to me there are two conditions here under which the plaintiff might recover; first, if there was a total loss and there was no bona fide dispute to that question, and settlement was made without any consideration; second, that there was a total loss and that neither the plaintiff nor the defendant knew it was a total loss, but both were of the opinion that there was not a total loss — no dispute about the matter, but just by ignorance of certain facts, both believed it was not a total loss.
“In the latter situation the accord and satisfaction settlement might be avoided by mutual mistake. In the first situation it might be avoided by lack of consideration.
“If, however, there was a total loss and there was a bona fide dispute as to that question, the settlement would be good, or if there was not a totál loss the settlement might be good.
“If it is agreeable to counsel the court will use the jury in an advisory capacity and submit special questions.”
The parties then agreed that the cases might be consolidated, tried as one case, and that the court use the jury in an advisory capacity and' submit special questions. Accordingly questions were submitted and answers made by the jury as follows:
“1. Do you find that the material in plaintiff’s building, not consumed by fire, had, immediately after the fire, any value over and above the cost of tearing it down and removing the debris from the premises? A. Yes.
“2. If you answer the foregoing question in the affirmative, state what you find such value to be. A. $1,200.
“3. Do you find that the plaintiff, when negotiating for settlement with the representative of defendant companies, claimed that he had sustained a total loss? A. Yes.
“4. Do you find that the representative of the defendant companies, when negotiating for settlement with the plaintiff, in good faith made the claim that plaintiff had not sustained a total loss? A. Yes.
“5. Do you find that any part of the walls remaining in place after the fire could have been used as it then stood in the reconstruction of the building on the premises similar to the one burned? A. Yes.
“6. If you answer question No. 5 in the affirmative, state if said part of the walls had any value for such purpose. A! Yes.
“7. Do you find that any part of the walls remaining in place after the fire could have been used as it then stood in the construction of a two-stoiy building on the premises? A. Yes.
“8. If you answer question No. 7 in the affirmative, state if said part of the walls had any value for such purpose. A. Yes.
After the return of the verdict motions were filed by each of the parties for a judgment in their favor on the special findings made by the jury. The court sustained the motion of the defendants, overruled the motion of the plaintiff and rendered judgment accordingly. The evidence has not been brought to this court, hence we must accept the findings of the jury as the settled facts in the case.
It is the contention of the appellant that the building in question, was wholly destroyed by fire within the meaning of the valued-policy act. This is the principal question in the case. The valued-policy statute is as follows:
“Whenever any policy of insurance shall be written to insure any improvements upon real property in this state against loss by fire, tornado or lightning, and the property insured shall be wholly destroyed . . . the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured, and the true amount of loss and measure of damages.” (R. S. Supp. 1930, 40-905.)
A stipulation for arbitration or appraisal contained in a fire insurance policy has no application where there is a total loss within the meaning of that term in the valued-policy act. If, however, there is a bona fide dispute between the parties on the question of total loss and they mutually agree to arbitrate the question, or the insured demands an arbitration under the terms of the policy and the insurer consents thereto, the conclusion reached by the arbitrators under such circumstances is binding on the parties. It is ordinarily a question of fact for the jury to determine under proper instruction whether a loss by fire is total or partial. (Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879.) The rule is well settled that property is not “wholly destroyed” within the meaning of the statute if an ordinarily prudent person would use any portion of the structure in the reconstruction of the building. If, however, the structure is so injured that it must be torn down or that which remains cannot be utilized in reconstructing the building, the building is “wholly destroyed.” It matters not that portions of the material in the building can be utilized in rebuilding, for it is not the material composing the building that is insured but the building itself, and if its remnant cannot be used as a basis of repair or reconstruction the loss is total. (Insurance Co. v. Heckman, supra; Kinzer v. Insurance Association, 88 Kan. 93, 127 Pac. 762, and cases there cited.)
The jury found that the material in appellant’s building after the fire had a value, over and above the cost of tearing it down and removing the debris, of $1,200; that a part of the walls remaining in place after the fire could have been used in the reconstruction of the building and that it had a value for such purpose. With these facts definitely established the court was bound to hold that the building was not “wholly destroyed” within the meaning of the valued-policy law.
It is also argued by the appellant that since the jury found the value of the building after the fire to be $1,200, over and above the cost of tearing it down and removing the debris from the premises, that the appellant should have recovered the face of the policy, less $1,200. This contention cannot be sustained. The building was not totally destroyed; consequently the ascertainment of the amount of the loss by appraisal in accordance with the terms of the policy was a proper and necessary proceeding before an action could be maintained on the policy, unless, of course, one of the parties refused to submit to such appraisal. The parties mutually agreed to the appraisal in accordance with the contract, and settlement was made on the basis of the finding of the appraisers. The parties are bound by this settlement, unless fraud or mutual mistake is established, which is neither alleged nor proven in this case.
We find no error in the record and the judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for the recovery of money. Judgment was against defendant by default. Issue was joined between plaintiff and interpleader, who claimed certain money which plaintiff had attempted to reach by garnishment process. Judgment was for plaintiff and against the interpleader. The interpleader appeals.
The facts are as follows: On May 2, 1930, defendant, Theo Cox, presented a check to the Hepler State Bank for $850. He deposited $350 and drew $500 in cash. Within a few minutes the check was discovered to be drawn on a bank in which the maker had no deposit. The president of the bank learned of this and immediately started in pursuit of Cóx. Cox on leaving the Hepler bank proceeded to the 'Stark bank and deposited $250. He made this deposit for the purpose of having this bank transmit it by wire to the Peru State Bank. This was done at once by wiring the correspondent bank of Kansas City to that effect. Cox at that time had an overdraft at the Peru State Bank. The $250 was intended to cover that overdraft. Within a few minutes after this was done the president of the Hepler State Bank arrived at Stark and learned what had been done. He told about the transaction at his bank. At his request the president of the Stark bank wired the Peru bank through the correspondent bank to disregard the previous wire as to the credit to be given Cox. Early that' afternoon the Peru bank called up the Stark bank and advised that it had received the two messages at the same time and that it did not know what to do about the matter. The books of the Peru bank showed a credit to Cox of $250 on the next day. It was explained that this was because the books of the bank were balanced and transactions shown as of 11 o’clock a. m. of each day. The wire directing the credit was received about 11:20 a. m., May 2.
Appellee brought this action against Cox. The petition alleged the cashing of the worthless check and damages thereby in the amount of $250. Judgment was prayed for in that amount. At the same time appellee filed a garnishment affidavit in which it charged that the Stark bank had $250 under its control belonging to Cox.
The Stark State Bank answered the garnishment process by a statement setting out the facts about as they have been given here.
The Peru State Bank then secured permission to interplead for the purpose of setting up its claim to the funds. It set out the deposit of the $250 in the Stark State Bank by Cox for the purpose of transmitting it to the Peru bank. It also set out copies of both telegrams heretofore referred to in this opinion. It alleged that the $250 was credited to the account of Cox immediately upon receipt of the first wire and before receipt of the second one. The interplea alleged that the $250 was deposited for the purpose of transmitting it to the Peru bank and for no other purpose, and that the attempt to cancel the transfer of the fund was wholly without effect.
To this interplea appellee filed a reply alleging that at the time the deposit was made in the Stark bank the $250 was the property of Cox; that it was not made for any particular purpose; that he did ask the Stark bank to transmit it to the Peru bank after the deposit had been made; that after the sending of the first wire to the Peru bank, but before its delivery, the president of the Hepler bank appeared and claimed that the money had been obtained by fraud, and caused the sending of the second wire; that the Stark bank did not at any time hold the money for any specific purpose, and that while the Stark bank was holding this money in the ordinary course of business garnishment process was served upon it.
Before the case came to trial appellee, the Hepler bank, filed a further answer alleging that the .$250 deposited was the identical money that had been obtained from it by fraud; that the money was not mingled with the other money of the Stark bank and that the title to the $250 never passed to Cox from appellee. The case came on to be heard. Judgment was against Cox by default. Issues were joined between the Hepler bank and the Peru bank as to who was entitled to the $250 alleged to be held by the Stark bank.
At the end of the taking of evidence the Hepler bank asked and secured permission to withdraw its reply and to file an additional answer to the interplea of the Peru bank. It alleged that the $250 was obtained by Cox from the Hepler bank through fraud; that he never had title to it, and that hence the interpleader never had title to it.
The court made findings of fact and conclusions of law as follows:
“First, that the said Theo Cox obtained the money representing the fund in question from the said Hepler State Bank through false representations and by means of a bogus check. That at the time of depositing said check and securing the funds thereon, the said defendant, Theo Cox, knew that the same was a false and fraudulent instrument.
“Second, that the plaintiff, garnishee or interpleader, or any of them, had no notice or knowledge of said fraud at the time it was perpetrated and were not parties thereto and did not contribute in any way to the perpetration thereof.
“Third, that on account of the false and fraudulent representations of the said defendant, Theo Cox, and his acts in procuring the money from the said Hepler State Bank, the ownership of said money never changed from the Hepler State Bank.
“Fourth, that said fund in the hands of the garnishee is the property of the plaintiff and the garnishee should be ordered to pay to the clerk of this court the said sum of $250 held by it for said plaintiff.
“Wherefore, it is by the court ordered, adjudged and decreed that the Stark State Bank, garnishee herein, be and is hereby ordered and directed to pay to the clerk of this court the sum of $250 held by it as garnishee of the defendant, Theo Cox.”
It will be seen that appellant started out with the theory that the $250 was the property of Cox and was held by the Stark bank just as any deposit would be held.
Later the theory was adopted that since this money was obtained by fraud it never became the property of Cox. This theory was followed by the trial court in rendering judgment.
The trouble about it is that it depends for its strength upon the' allegation that the money deposited by Cox in the Stark bank was the identical $250 obtained from the Hepler bank. We are unable to find any evidence of this in the record. Appellee urges that the finding that the ownership of the $250 never passed from the Hepler bank is a finding upon that point which under the well-established rule of this court will not be disturbed. However, we have concluded that the finding referred to is a conclusion of law rather than a finding of fact and that there is an absence, of evidence in the record upon which to base the findings of fact necessary to sustain that conclusion. Since we have reached the above conclusion, it becomes necessary for us to examine the effect of the deposit and the wire of transmittal. On that point we have reached the conclusion that the evidence is undisputed that the $250 was deposited in the Stark bank by Cox for the specific purpose of transmittal to the Peru bank and for no other purpose. The Stark bank became the agent of Cox for the purpose of transferring this fund. (Brockmeyer v. National Bank, 40 Kan. 376, 19 Pac. 855, 7 C. J. 632.) All control of the Stark bank over that deposit ceased with the sending of the first wire.
The judgment of the district court is reversed, with directions to order the Stark State Bank to pay the $250 held by it as garnishee in this case to the Peru State Bank.
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The opinion of the court was delivered by
Johnston, C. J.:
J. D. Hinkle brought this action to rescind a contract made in his purchase of real property from the defendant, George W. Ward. At the close of his evidence the court sustained a demurrer thereto and gave judgment for the defendant. Plaintiff appeals.
Ward, it appears, owned the property contracted for, which consisted of two lots in the town of Pierceville, on which there was a building designed to be used in part as a garage and in part as a residence. After an examination of the property by the plaintiff an agreement was arrived at and a purchase made for the price of $2,000. The terms were $200 in cash, a used automobile of the estimated value of $400 and a note for $1,400 secured by a mortgage on land of plaintiff in Finney county. After the agreement was made a deed was executed by Ward for the property, whereupon the-cash payment of $200 to Ward was made, the automobile delivered and the note and mortgage executed and delivered. The son of plaintiff, for whose use the property was purchased, went into and remained in possession about a week. There was some dispute as to whether an abstract of title of the property was to be furnished. When plaintiff later asked defendant for an abstract the defendant in reply asked plaintiff for an abstract of the mortgaged land, and this was refused. The defendant did not furnish plaintiff an abstract when requested, but did shortly after this action was brought. In addition to the facts stated plaintiff claimed and gave testimony to the effect that he learned, after his purchase, of a previous contract of sale by defendant to Reitberg, who had entered into possession of the property in February, 1929, and had therein a stock of automobile equipment, and in the following September Reitberg became a bankrupt, when the stock he had on hand was turned over to a trustee in bankruptcy. At the time of the sale in question Ward told the plaintiff that the stock was in bankruptcy, but did not tell. him that the building or lots were involved in bankruptcy. It appears that there had been no transfer of title to Reitberg of the property.
Plaintiff claims that when he purchased the property he was told by Ward that the title was clear and that immediate possession could be given and that when he learned that a contract of sale had been previously made, and of the bankruptcy proceeding, he concluded to and did rescind the transfer. He brought this action at once, but it appears that he has not tendered the deed back to the defendant, and that the latter still retains the money paid as well as the automobile and the notes and mortgage previously given.
Plaintiff insists that the judgment denying him the remedy of rescission should be reversed. The defendant, on the other hand, raises the question, first, that the plaintiff has no appeal here, and second, that there has been no valid revivor of the judgment. Was an appeal taken within the time limit? The decision sustaining the demurrer to plaintiff’s evidence was rendered May 26, 1930. A motion for a new trial was filed on May 28, 1930, which was overruled on September 3, 1930. Ward died on October 8, and on October 31, 1930, A. M. Fleming was appointed administrator of his estate. On November 26, 1930, the last day of the six-month period for the taking of an appeal, a notice of appeal was served upon A. M. Fleming, who had been the attorney of record for Ward in the action, and on December 8 an attempt was made to obtain a revivor of the proceedings. Was the service on Fleming, who had been the attorney of record of the defendant, sufficient to secure a valid appeal? Under the statute an áppeal may be perfected within six months from the time the judgment or order appealed from is rendered. (R. S. 60-3309.) It may be accomplished by a notice filed with the clerk of the trial court and personal service of notice on adverse parties or their attorneys of record. (R. S. 60-3306.) No notice was served upon the defendant, as he had died several weeks prior to that time. The only service made was upon Fleming, who accepted service of the notice, and we have the question, Did the intervention of the death of defendant deprive the attorney of record of the right to accept service of the notice, and defeat the appeal? Ordinarily the death of a client ends the general powers of his attorney, and there is a general rule that his powers terminate with the entering of judgment. It is competent for the legislature to determine whether any appeal shall be allowed and to impose such conditions and restrictions in the granting of an appeal as it may see fit. It was manifestly the purpose of the legislature to promote appeals by making the way easy and the path straight. It would be difficult to provide a more simple method than has been prescribed by the legislature in the taking of an appeal to the supreme court. As we have seen, it is done by the mere filing of a notice of the purpose of a party to appeal with the clerk of. the trial court, and a notice to the adverse party or to his attorneys of record. Who are adverse parties may be easily discerned from the record, and likewise those who had acted as attorneys of record for the defeated party. The legislature might have prescribed a number of methods of taking an appeal such as by posting a notice of the purpose or the publication of notices, of which adverse parties would have been required to take notice, or it might have been done by service on the clerk of the court or some public functionary connected with it. An attorney of record is an officer of the court, and the legislature has prescribed that notice may be served upon him. The notice is not served upon him merely as the representative of the prevailing party, but as one who was connected with the case in an official way. A notice to the clerk of the court placed on file would have been sufficient if the legislature had so declared. It has declared that it may be served on an attorney of record, and it is the opinion of the court that a service upon him is sufficient even though his client had died prior to the time of service. The attorney of record is a designated functionary upon whom notice of appeal may be served. The designation is independent of any contingency of the possible discharge of the attorney or the death of a party. He was probably designated because of his close connection with the case and of the reasonable assurance that the notice would reach the parties more directly interested. A discharge of the attorney a few hours before the taking of an appeal would expire might defeat an appeal if service could not be made upon an attorney of record. The same situation might arise because of the death of the adverse party. So the legislature provided that it might be made either upon the adverse party or an attorney of record. The conclusion is that the service made upon and accepted by an attorney of record is effective to vest this court with jurisdiction of the appeal.
There remains the question as to whether there has been a revivor of the proceeding. An attempt at revivor was made, as already shown, by service upon Fleming, the administrator. The action being one for the rescission of the sale and transfer of real property, it could and should have been revived in the names of the heirs or devisees of the deceased. (R. S. 60-3211.) After the time for appeal had expired a notice of revivor was served upon the administrator and he did not consent to a revivor. In the matter of a revivor it is essential that the statutory requirements be followed with some strictness. In Steinbach v. Murphy, 70 Kan. 487, 78 Pac. 823, it was said:
“All statutes prescribing time limits for the institution or completion of proceedings are necessarily arbitrary, but that relating to revivor is especially unforbearing, and parties must so order their conduct that, notwithstanding disastrous circumstances, and ‘moving accidents by flood and field,’ they may comply with it. Interruptions of the flow of the allotted time cannot be permitted ‘from reasons based on apparent hardship 'or inconvenience, but must rest upon some practical impossibility to sue. They are limited in their character, and are to be admitted with great caution, and only in cases of strict necessity.’ (19 A. & E. Encycl. of L., 2d ed., 216.)” (p. 490.)
Until it was properly revived the judgment was dormant. It was one that might have been reanimated and restored to activity and made effective, but until it was revived no action could be taken thereon. There must always be two parties to an action or' legal proceeding, a plaintiff and a defendant, and when one of the contending parties dies the court is without power to proceed. We have a case here without a defendant or a party against whom process may lawfully run. Without a revivor no order or judgment this court could make would be effective. Some of the cases illustrative of the effect of death and dormancy are the following: State v. McArthur, 5 Kan. 280; Green, Adm’r, v. McMurtry, 20 Kan. 189; Teff v. Citizens’ Bank, 36 Kan. 457, 13 Pac. 783; Cunkle v. Interstate Rld. Co., 54 Kan. 194, 40 Pac. 184; C. K. & W. Rld. Co. v. Butts, 55 Kan. 660, 41 Pac. 948; Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137; Manley v. Mayer, 68 Kan. 377, 394, 75 Pac. 550.
Since there has been no valid revivor, and that no effective judgment may be rendered by this court, the proceeding must be dismissed. It is so ordered.
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The opinion of the court was delivered by
Sloan, J.:
This is an action brought by the plaintiff for the purpose of obtaining an inspection and audit of the books of the defendant to determine its annual gross income from the sale of electric energy in the city to the end that the city might enforce the collection of a franchise charge of two per cent upon such gross income. The trial court found for the plaintiff and entered judgment accordingly. The defendant appeals.
The trial court made special findings of fact, which are not challenged by either party, and conclusions of law, as follows:
“Findings of Fact,
“1. At all of the times hereinafter mentioned the city of Eureka was a city of the second class, operating under the commission form of government.
“2. The Kansas Electric Power Company is a corporation organized under the laws of the state of Kansas, and since the year 1926 has been engaged in the distribution and sale of electric energy for light and power for both public and private consumption in the city of Eureka.
“3. In May, 1914, a franchise was granted by the city of Eureka to one R. M. Wilson for the construction, operation and maintenance of an electric light and power plant and distribution system in the city of Eureka for a period of twenty years. This was under ordinance No. 529, passed and approved May 25, 1914, which recited that it was granted under and in conformity with chapter 83, Laws of 1909 (sec. 14-1701, R. S. 1923), and which was submitted to and approved by the electors of the city in accordance with said statute. This franchise was granted to R. M. Wilson, his successors and assigns, has never been repealed, has not expired by its terms, and is the only franchise ordinance under which the said Wilson or any of his successors or assigns has ever operated the electric light system in the city of Eureka, and the operation of said plant by the said Wilson, or any of his successors or assigns, was by virtue of said ordinance No. 529'.
“4. In May, 1914, the said R. M, Wilson, being the owner of the electric property and distribution system in the city of Eureka, sold the same to one R. G. Lafite. Thereafter said property was operated by Lafite (who at first transacted business under the name of the Eureka Light and Power Company and later under the name of the Eureka Electric and Ice Company), until the year 1922, when he sold it to one Albert Emanuel. During the same year the property was transferred by said Emanuel to the Eastern Kansas Power Company, a corporation, which operated it from 1922 to 1926, and then sold and transferred it to the Kansas Electric Power Company, which has owned and operated the same since that time.
“5. It was provided in section 14 of said ordinance No. 529 that—
“ ‘In consideration of the privilege given the grantee under this franchise by the city of Eureka, Kansas, the grantee agrees to pay the city of Eureka, Kansas, two per cent of the annual gross income derived from the sale of electric energy in the city of Eureka, Kansas, as recorded on the books of said grantee and collected by said grantee; it being agreed that said books shall be open to audit, at all times, by the commissioner of finance and revenue of the city of Eureka, Kansas, or the proper person in authority.’
“Also provides for furnishing free electric service to the city, which was done, the value thereof being $200 or $300 per year,
“6. In section 5 of said ordinance No. 529 was fixed a maximum schedule of residence, commercial and power rates at which electrical energy was to be furnished to private consumers by the grantee. Section 12 of said ordinance provided that the city should have the right at any time to revise and change the schedule of rates therein provided and to fix and establish rates, and in pursuance thereof several changes were made, increasing and lowering the rates as the increased or decreased operating expenses of the plant warranted. All of these changes were embodied in ordinances amending section 5 of ordinance No. 529, but none of them were submitted to the electors of the city for approval.
“7. Shortly after his acquisition of the property in 1914, Lafite entered into a ten-year contract with the city for the furnishing of electricity for street lighting and water pumping. The water-pumping contract was l'evised in 1917 by a reduction in the rate and the extension of the term ten years from that date. Thereafter, and in 1920, increases were allowed in the rates for pumping water and street lighting of between twenty and twenty-five per cent on account of the usual conditions of expense.
“8. In 1920, when one of the increases in rates was made, Lafite was in default in the payment of the two per cent gross receipts charge provided for in section 14 of ordinance No. 529. A lump-sum settlement of $2,500, in payment of all arrears, was agreed upon, payable in monthly installments of $250. The first payment was made on November 5, 1920, and monthly payments were made thereafter, all of which were deposited in the general fund of the city.
“9. During the early part of the year 1921 there was considerable agitation by the people of Eureka for a reduction in electric rates charged private consumers, and the city authorities desired a reduction in street-lighting and water-pumping rates. As a result of numerous conferences between the city officials and Lafite, an agreement was reached that the street-lighting and water-pumping rates should be reduced to the levels which prevailed prior to May, 1920, and that there should also be some reduction in residence and commercial lighting rates, the extent of which, however, was not agreed upon. In order to secure such reduction the city officials on their part were willing and agreed that the two per cent gross receipts charge, amounting at that time to approximately $1,000 per year, be eliminated. Accordingly, in July, 1921, the city governing body passed ordinance No. 824. In this ordinance a new schedule of rates to be charged by the electric light company was promulgated. • The same were much lower than the rates then being paid, but not lower than the rates fixed in the original franchise ordinance No. 529. By this ordinance No. 824 section 14 of said original ordinance, providing for the two per cent gross receipts charge, was repealed; but this ordinance No. 824, by which it was attempted to repeal this two per cent gross receipts provision, was never submitted to the electors of the city as required by section 14-1701, R. S. 1923. Lafite, being dissatisfied with the schedule of rates contained in ordinance No. 824, appealed to the public utilities commission of the state of Kansas. A hearing was had and said commission made an order increasing the rates promulgated by ordinance No. 824, but reducing the rates somewhat from the rates in force prior to the passage of said ordinance.
“10. Immediately following the passage of ordinance No. 824 Lafite reduced the rates for water pumping and street lighting in accordance with the agreement which he had theretofore reached with the city authorities covering such rates.
“11. In fixing the rates in ordinance No. 824 the city authorities used a basis from which they contemplated that Lafite would appeal to the commission, and were about forty per cent lower than the then existing rates. Lafite had not agreed to the rates named in ordinance^ No. 824 and was not guilty of any breach of agreement in appealing.
“12. At the hearing before the commission it appears that there was some discussion with reference to this two per -cent charge, and the fact that the city authorities, by ordinance, had repealed the same, but it does not appear whether this was in any way taken into consideration by the commission in fixing the rates in its order.
“13. During the period from 1922 to 1928, when the letter set out in the next finding was written, the city made no claim, through its constituted officers, of any kind, for the two per cent franchise charge, nor was any demand made, on the part of the city, for the payment of such during this period.
“During this period the defendant and its predecessors made several changes in rates and in so doing the payment of such gross receipts charge was never contemplated.
“14. In March, 1928, the city attorney of Eureka, Homer Gooing, wrote to the Kansas Electric Power Company at Eureka as follows:
“ ‘The present governing body of the city of Eureka considers ordinance No. 824 invalid so far as it purports to repeal section 14 of ordinance No. 529, and I have been instructed to notify you that the city will expect you to account for and pay to it 2 per cent of your gross income from the sale of electric energy in Eureka for the entire period during which you have been operating in this city.’
“Thereafter and on the 26th day of October, 1929, this action was brought.
“Conclusions op Law.
“1. That portion of ordinance No. 824 passed by the city commission of Eureka in July, 1921, which purports to repeal section 14 of ordinance No. 529, never having been submitted to the electors of said city as required by law, is invalid and does not in any way affect the liability of the defendant, the Electric Light Company, to pay said two per cent gross receipts to the city as compensation for the use of the streets, alleys, avenues and public grounds of said city for its poles, wires and other property.
“2. All claims on the part of the plaintiff, against the defendant, for said two per cent on gross receipts accruing more than five years prior to the commencement of this action, are barred by the statute of limitations.
“3. The defendant, as required by section 14-1701, R. S. 1923, and under section 14 of ordinance No. 529, should be, and it is ordered, to open its books to the audit of the commissioner of finance and revenue of the city of Eureka, Kansas, or the proper person to be appointed by this court for that purpose, in so far as the same covers the five-year period of time immediately preceding the commencement of this action.”
Did the trial court err in its conclusions of law? It may be stated at the outset that since ordinance No. 824 was not submitted to and approved by the electors of the city it is, in so far as it attempts to amend, extend or enlarge the franchise contract, void and of no effect. (R. S. 14-1701, subdivisions 7 and 8; City of Manhattan v. United Power and Light Corp., 129 Kan. 592, 283 Pac. 919.) The appellant contends, however, that the repeal of section 14 of ordinance No. 529 is included within the regulatory power expressly conferred on the city commissioners in R. S. 14-1701, subdivision 5. The authority and necessity for section 14 of the ordinance are found in the sixth subdivision of R. S. 14-1701. The two per cent charge met the requirement of the statute and gave validity to the ordinance. This construction had been placed on the ordinance by the parties. The trial court found that in 1920, when the city consented to an increase in the rates, it insisted on the payment of the two per cent charge, which was at that time in arrears, and the grantee in the franchise ordinance consented thereto. The court holds that the repeal of section 14 of the franchise ordinance was not within the rate-making power conferred on the city commissioners, and could not be repealed without the consent of a majority of the electors of the city voting thereon at an election duly held.
Appellant further contends that it entered into an agreement with the city which has been fully performed and the city has received a substantial consideration therefrom; that by reason thereof the city is estopped from questioning the validity of the attempted repeal of the two per cent charge. From the findings of fact made by the trial court it appears that in 1921 there was considerable agitation for a reduction in electric light rates, and, as a result of numerous conferences, Lafite agreed that the street-lighting and water-pumping rates should be reduced to the level which prevailed prior to May, 1920, and that there should also be some reduction in residence and commercial lighting rates, the extent of. which was not agreed upon. The city officials agreed that the two per cent gross receipts charge, which amounted at that time to approximately $1,000 a year, would be eliminated.
Performance on the part of the party asserting estoppel is necessary. Was the agreement fully executed by'the appellant and its assignors? The city officials attempted to repeal the section of the ordinance providing for the two per cent gross receipts charge by passing ordinance No. 824, which was not submitted to the electors of the city. In this ordinance a new schedule of rates was promulgated, much lower than the rates then being paid, but higher than the rate schedules in the original franchise ordinance. Lafite reduced the rates for water pumping and street lighting in accordance with the agreement, but was dissatisfied with the rates promulgated by the city and appealed to the public utilities commission. This, however, was not in violation of his agreement. A hearing was had before the public utilities commission and a new schedule of rates fixed by the commission. The court, however, was unable to determine whether or not the two per cent gross receipts charge was considered by the commission in arriving at the new schedule of rates.
The appellant earnestly contends that the case of Municipal Power Transmission Co. v. City of Lyndon, 127 Kan. 59, 272 Pac. 158, is in point and controlling. In that case the contract was performed on both sides for some five years, and the court held that it should be specifically performed. In the case under consideration the evidence does not show full performance of the contract, and therein lies the distinction.
The burden was on the plaintiff to establish performance of the contract, and performance of the contract required that the two per cent charge should not be taken into consideration by the public utilities commission in fixing a schedule of rates. If it was one of the elements considered by the commission in arriving at its order, Lafite did not fully perform his contract and the elements essential to constitute an estoppel were- not established. To give validity to an invalid but not unlawful or illegal contract through the doctrine of estoppel the assertor must establish that, relying upon conduct and assertions of the other party amounting to a representation that the contract would be performed, he, fully and in good faith, performed his part of the contract to his injury. (21 C. J. 1111; Municipal Power Transmission Co. v. City of Lyndon, supra; O’Leary v. Street Railway Co., 87 Kan. 22, 123 Pac. 746.) The findings of fact by the trial court do not bring the appellant within this rule, and the doctrine of estoppel does not apply.
It is further contended by the appellant that by reason of the delay of the city in asserting the rights claimed in this case, and the changed condition resulting therefrom, there had been such laches as would bar a recovery. The law relating to the doctrine of laches was clearly defined by this court in City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589:
“The doctrine of laches is equitable in character, and mere lapse of time is not a bar to relief when the rights of the parties to the suit have not been prejudicially affected by the delay, the rights of innocent third persons will not be prejudicially affected, and nothing has occurred to create an equitable estoppel against the moving party or to create an equity in favor of his adversary.” (Syl. ¶ 1.)
See, also, Rice v. Kilworth, 132 Kan. 418, 295 Pac. 700.
The trial court did not find that the rights of the appellant had been prejudicially affected by the delay, and no subject of equitable consideration is presented in favor of the appellant except the lapse of time.- Laches, therefore, does not bar the enforcement of the contract.
There is a cross appeal in this case in which it is contended that the trial court erred in holding that the statute of limitations was-available as a defense. This is an action to enforce a contract and is governed by the laws relating to contracts generally. (City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768.) The court properly held the statute of limitations applicable.
Finding no reversible error, the judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin obstruction of a public highway. Plaintiff prevailed, and defendants appeal.
Lying north of Cherryvale are two parcels of land which, as the result of a survey made in 1918, are known as tract 6 and tract 7. Tract 6 is east of tract 7, which extends westward to the right of way of the Santa Fe railway. Tract 6 is owned by Kring, and tract 7 is owned by West. The two tracts are bounded on the south by a section line, along which is a section-line road. Opposite the divid ing line between the two tracts, and beginning at the section-line road, is a highway extending southward to Cherryvale, known as North Carson street.
In 1884 tract 6 was platted as an addition to Cherryvale, and contained 110 lots. There is nothing in the record before the court to show whether there were streets or alleys. Two or three residences and a store building were erected on lots in the addition. The store building was on lots near the northwest corner of the tract. In 1892 Kring purchased the land, and afterwards procured vacation of the plat. Soon after Kring purchased, and in the fall of 1892, he converted the store building into a slaughterhouse, erected scales, and erected facilities for keeping and feeding stock. Ever since the slaughterhouse was established Kring' has conducted a slaughterhouse business there. He also bought grain, which was delivered to him there and stored in bins and cribs.
A long time before Kring purchased there was an unimproved traveled way along the east side of tract 7, leading down to the section-line road at North Carson street. In 1893 Kring and his neighbors graded this road from the slaughterhouse down to the section line and to the Frisco depot, a few blocks west of North Carson street. The work done was donation work. The next year a grader was used on the road, and the ditches then cut are substantially in the same place as the ditches of the way in controversy. After that cinders were put on the road, and it was oiled. Since 1893 the road has been worked and kept up, so it has been a good road.
The original road was for people who bought lots in the addition. Since Kring established his slaughterhouse business the general public has used the road to take stock of various kinds and grain of various kinds to Kring, and then go out. The public has also used the scales. Kring has had a tenant on tract 6, and he has used the road, and persons would use it to go to see Kring and the tenant, and to go out.
In 1929 West purchased tract 7, and later barricaded the road. The prayer of the petition was that West be enjoined from obstructing the highway or interfering with plaintiff in the use of it as a highway. The court made a general finding that plaintiff should have judgment as prayed for in the petition, and rendered judgment accordingly.
In the opinion in the case of Shanks v. Robertson, 101 Kan. 463, 168 Pac. 316, the following from 37 Cyc. 21 (29 C. J. 373) was quoted and applied:
“To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner’s permission, and continuously and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present a highway exists by prescription; otherwise not.” (p. 465.)
It would serve no useful purpose to recite or discuss the evidence. That favorable to plaintiff, which is all that is open to present consideration, met all these tests of a highway by prescription.
Taking possession of the old road, improvement of it, subsequent work done to maintain the road, and use of it by the public, all open, visible and notorious for more than fifteen years, were ample to raise an implication of knowledge on the part of West’s predecessor in interest that the road was appropriated for and was maintained and used as a public highway; and the continued maintenance and public use of the highway for more than another period of fifteen years made it a public highway before West purchased. Since it was a public highway, which West could see was on the land when he purchased, he was not privileged to obstruct it. Besides that, the deed he took, and which was admitted by his answer, contained the following after the description:
“Excepting the highway on the east side of said tract, and included in said description.”
In 1903 Kring gave an oil and gas lease of tract 6 to E. R. Stone, who then owned tract 7. The lease contained the following:
“In consideration for the above lease the first parties are to have the right to a private road commencing at a point 630 feet east from center line of Santa Fe R. R. on south line of section 4, township 32, range 17, running north parallel to said R. R. 80 rods, this road to be used in common by both parties.”
Kring contended the lease constituted recognition of the highway. The lease was for oil and gas purposes. It did not mention width of the way, and no way was ever established pursuant to the lease. West contended the lease* did not recognize the highway. There is nothing to indicate the court regarded the matter as important.
When the lease was given, there was some conversation about the road leading to town. Stone said to Kring, “You have already got a road,” and Stone said he wanted to tie into it. The testimony was objected to. There is nothing to show that West complained of it in his motion for a new trial, and he does not complain of it in his brief. The testimony was competent to show Stone knew of the existing highway in 1903.
In 1904 Kring leased Stone’s land, and used it and paid rent for it until about the time West purchased. West says Kring, as Stone’s tenant, established the road. The road had been established for more than ten years before the tenancy commenced.
West says the neighbors’ grading was done on the road from the section line to town, and West goes outside the record in discussing the subject. That road was graded, but the testimony was clear that Kring and the neighbors also graded the road in controversy.
Kring put a gate across the south end of the road. The testimony was conflicting about when this was done and how long the gate was there. There was testimony that the gate was put in some eighteen years before the trial, that it was put in to keep stock out, that it was kept closed but-a short time, and then was left open and rotted down, and that while it was there, highway users opened it to go in and out.
West cites the case of State v. Horn, 35 Kan. 717, 12 Pac. 148. The case involved an old Indian-trail road over vacant land, which had been granted by act of congress to a railway company. In the opinion it was said that in order to start prescriptive right it was necessary that the public/by its constituted authorities, should have taken actual possession of the ground as a highway, and used it as a public highway. The opinion discloses, however, that the use of the road by individual travelers was not of that adverse character necessary to indicate implied dedication or initiate prescriptive right. In that situation action by public authority would be necessary. The present case is governed by the decision in Shanks v. Robertson, 101 Kan. 463, 168 Pac. 316, referred to above, which makes no mention of action by public authority.
Kring had such special interest in the highway that he could maintain the proceeding to enjoin obstruction.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Sloan, J.:
This is. an action to recover on a written contract. Plaintiff prevailed, and defendant appeals.
The action was originally filed in the city court of Wichita, and it is alleged in the bill of particulars that on June 3, 1925, the parties entered into a written contract, which recited that they were accountants residing in Wichita; that the defendant was negotiating with the banking department to .obtain the work of auditing failed banks under receivership, and the parties mutually agreed that they would each devote their entire time in the performance of the contract in a proper and workmanlike manner; that out of the compensation received from the department the expense incidental to the performance" of the work would be paid and the net profit equally divided between them.
It was further alleged that the banking department had paid the defendant $3,300, and that expenses had been paid in the amount of $1,800, leaving a profit of $1,500, of which amount plaintiff was entitled to $750, less $250, which had been previously paid to him, and asked judgment for $596.25. An exhibit was attached to the bill of particulars purporting to set out the amount of expense incurred, which consisted of eight items.
The defendant answered, admitting the execution of the contract, and alleged that on August 15, 1925, he entered into an agreement with the banking department to audit five failed banks for the total consideration of $3,500; that the plaintiff, at the time of the execution of the contract, represented that he was a certified public accountant, capable of auditing banks; that such representations were false and untrue and that defendant relying thereon entered into the contract; that the defendant failed to complete any of the work assigned to him under the contract and that the statement of account was incorrect.
It was alleged in an amended answer that it was orally agreed between the parties that each one was to receive $25 a day for each day he devoted to auditing the banks, and that the plaintiff had failed to perform his part of the contract, and expenses were incurred in excess of the amount received from the banking department.
The case was tried in the city court of Wichita, judgment rendered, an appeal taken to the district court and there tried de novo.
The evidence tended to show that, after entering into the contract set out in the pleadings, the plaintiff assisted in auditing at least two banks and performed other work at their office in Wichita; that the defendant admitted the receipt of $3,500 from the banking department and that the total expense incurred, including the $250 paid plaintiffs, was $1,411.73. At the close of plaintiff’s testimony, with the permission of the court, he amended his bill of particulars by inserting $3,500 as the amount received by the defendant and $1,173.11 as the amount expended.
The evidence on the part of the defendant tended to show that the parties entered into an oral agreement by the terms of which each party was to receive $25 a day for each day he devoted to the work; that the plaintiff worked twenty-eight days and the defendant seventy-seven days; that the plaintiff had received $315; that the total expense of the undertaking was $2,231.26, and the amount received $3,500; that the plaintiff represented at the time of the execution of the contract that he was a first-class senior accountant; that he did not properly perform his work and it was necessary to recheck it against the original records. On this evidence the jury returned a verdict for the plaintiff in the sum of $647.27, and the court rendered judgment accordingly.
It is first contended, on the part of the appellant, that the court did not have jurisdiction to try the cause for the reason that it was an action in accounting between partners, and the city court of Wichita had no equitable jurisdiction. It is conceded that the city court of Wichita has no equitable jurisdiction (Milling Co. v. Stevens, 94 Kan. 745, 147 Pac. 815), and that the district court in the trial of the cause has only the jurisdiction of the city court. (Thompson v. Stone, 97 Kan. 237, 64 Pac. 969.)
The appellant insists that the rule announced by this court in Berroth v. McElvain, 41 Kan. 269, 20 Pac. 850, is controlling in this case. This case, however, is not in the nature of an equitable accounting between partners, but is an action involving a single adventure in which there was no complexity of accounts, and the ordinary legal remedies were fully adequate to determine the matters in controversy. (Frith v. Thomson, 103 Kan. 395, 173 Pac. 915; Cecil v. Oppermann, 131 Kan. 722, 293 Pac. 486.)
The contention is made that the court failed to instruct the jury on the issues presented by the pleadings. The court submitted to the jury the question of the amount of expenses incurred and whether there was an oral agreement modifying the written contract as contended by the appellant. It did not instruct on the alleged representation as to the competency of the appellee and the claim that he did not complete his part of the work. The appellant requested the court to instruct the jury on the oral agreement and its effect in determining the amounts, if any, due appellee, and on this question the court fully instructed the jury. The appellant made no other request and was apparently content to submit his case to the jury on this issue. He cannot assign as error in this court the failure of the trial court to instruct the jury on all issues after it has adopted his theory of the case and given the instruction requested by him. (Rapier v. Bank, 105 Kan. 606, 185 Pac. 888.)
The appellant makes the further contention that the court erred in the admission and rejection of testimony. We have carefully examined the record and we find no error in the rulings of the trial court, and furthermore the rejected evidence was not produced on the hearing of the motion for new trial. There was substantial evidence to support the verdict and we find no reversible error.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The priority between mechanics’ liens and mort gages is the only problem for consideration in this case. There is an appeal and a cross appeal.
The action was brought by a mechanic’s lienholder to foreclose its liens on two separate properties, making other lienholders and the holder of mortgages parties defendant. Liens were claimed separately on two city lots separated by a street and in different blocks but directly opposite each other and owned by the same party, who executed a mortgage on each of them separately to the same mortgagee for different amounts the same day and recorded the same day, and contracts were made with the lienholders in most instances for work on both buildings. One of the lienholders is interested only in one building, the others in both but for separate and distinct work done and material furnished, and in distinct and definite amounts on each building. There is no question about the amounts of the liens claimed or the furnishing of the material or labor as claimed. The trial court gave the mechanics’ lienholders a priority on one property and the building and loan association, the mortgagee, priority on the other. Each party appeals from the part of the ruling that is adverse.
To avoid confusion the matters will be considered here as though they were in two separate cases, considering first the appeal of the building and loan association from the judgment of priority given the mechanics’ lienholders, on lot 18, block 7, University Place, Lawrence,' Kan. The owner, E. W. Sellards, staked off the ground for the erection of a new residence building on this lot on or before June 6, 1928, and the Kennedy Plumbing Company on that day went upon the grounds and dug a trench from the city sewer in the alley just back of the property to the point where the building was to be constructed as shown by the stakes. The mortgage was executed June 9 and recorded June 12, and the excavation for the building was commenced June 14. The trial court held that the digging of the sewer trench was under the statute a sufficient commencement of the building to give the lien of the mechanics a priority over the mortgage executed three days later.
It is contended by the building and loan association that the mere digging of a small trench from the alley over the lot to the rear of the proposed building, as staked off, would not be very noticeable and would not indicate that a building had been commenced there, nor meet the reasonable requirements of the statute as “the com mencement of such building.” Appellant cites the case of Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 29 Pac. 153, where it was said:
“The digging for the cellar or the excavation for the foundation is the commencement of the building, within the intention and meaning of the statute.” (Syl.)
It was there contended that the placing of material on the lot should be regarded as the commencement of the building, but the court in the opinion regarded that as too indefinite for the- reason that it might be later removed, or, if used, not used for a long time thereafter, and concluded as follows:
“The digging of the cellar, the excavation for the foundation walls, is a definite thing, open to the observation of all passers-by, very suggestive of its purposes, and is a better starting point from which to date a lien, because it is unmistakably the commencement of a building.” (p. 344.)
From this statement it is perfectly obvious that the court did not intend to convey the thought that nothing but the digging for cellar or foundation could be considered as the commencement of the building, but that such work was definite and open to observation of all passers-by and a good or better starting point than the other thing suggested in that case, namely, placing lumber or material on the lot. Some buildings are commenced without either cellars or foundations by setting the sills on blocks or posts. One of the witnesses in this case stated that one could tell by a glance at the ground and the structure that a new building was being constructed; that the ditch was covered in the alley but not on the lot, and that they usually started a sewer before anything else to get a drain to the basement to drain the water out. This situation fully meets the requirement of the statute as the commencement of the building, the sewer ditch being something open to the observation of all passers-by and something definite which everyone could readily see and recognize as the commencement of the building.
The pertinent provision of the statute, R. S. 60-1401, is:
“Such lien shall be preferred to all other liens or encumbrances which may attach to or upon said land, building, or improvement, or either of them, subsequent to the commencement of such building.”
Two paragraphs in Corpus Juris are very clear and conclusive as to what may constitute the commencement of a building under such statutes.
“The commencement of the building or improvement within the meaning of the lien law is the visible commencement of actual operations on the ground for the erection of the building; the doing of some work or labor on the ground, such as beginning to excavate for the foundation or the cellar, walling the cellar, or work of a like description, which everyone can readily see and recognize as the commencement of a building, and which is done with the intention and purpose then formed to continue the work until the completion of the building.” (40 C. J. 267.)
“In order that a particular date may be fixed as that on which the building was commenced, within the meaning of the foregoing rules, it is necessary and sufficient that, on such date, there shall have been done work of such a substantial and conspicuous character as to make it reasonably apparent to the mortgagee that the building has actually commenced, and that the work shall have continued without abandonment, change of plan, or change of contracting parties.” (40 C. J. 292.)
As to the other lot, No. 2, block 6, University Place, Lawrence, Kan., directly across the street from the former, the trial court gave the building and loan association, the mortgagee, a priority over the liens of the mechanics and materialmen, and the latter appeal. On this lot the mortgage was executed June 9 and recorded June 12, and the first work done thereon was on June 24, so that it is in effect admitted that as far as the dates are concerned the ruling in favor of the mortgagee was correct, but the lienholders present two further propositions: the first, that it is fair to presume that the officers of the building and loan association saw the work progressing on the other lot across the street and knew the plan of the owner of both lots to construct a building on each with practically the same mechanics and materialmen; and that they knew the other new building across the street would enhance the value of this lot and the building thereon. And for this reason they should both be considered together, and because the work was actually commenced on the other lot'before the giving of the mortgage, that should be regarded as the commencement of work on this lot as well, which would give a priority to the mechanics’ liens. This theory is inconsistent with the attitude of all parties to the case all the way through, including the lienholders. Their claims and their judgments were separate and distinct as to the two lots when they should have put them together as one claim and one judgment if they expected to consider their lien as only one on both lots, to take advantage of the earlier commencement of work on the other lot. No authorities are cited to support this theory, and we are not inclined to accept it as applicable to the facts in this case.
The second proposition of the mechanics’ lienholders is that as between the mortgagee and other claimants the lien of the mort gagee does not attach except as the money has been advanced upon the note and mortgage. The record shows that the first payment made to the mortgagor on this loan was in the sum of $80.25 on June 29, five days after the work was commenced on this lot. The next payment was $800 on July 3 and later the balance of the $3,200 loan was paid. The lienholders cite in support of their contention the following cases: Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236; Bush, Sheriff, v. Collins, 35 Kan. 535, 11 Pac. 425; Green v. Green, 41 Kan. 472, 21 Pac. 586; and Kantzer v. Southwest Home Investment Co., 128 Kan. 401, 278 Pac. 53.
In the first case the lien of the mortgage was held to be subordinate to the mechanic’s lien, and the opinion only mentions incidentally the fact that although the mortgage was for $20,000 only $11,600 had been paid by the mortgagee when the borrower became insolvent and the work on the building ceased. There was no controversy or necessity for any as to the amount of the mortgage lien between the mortgagee and the mechanics’ lienholders because the entire mortgage lien was subordinate.
In the Bush case, supra, the controversy was between a purchaser of a stock of merchandise and attaching creditors, and the purchaser, innocent of any fraud on the part of vendor, was protected to the extent of the money he had paid at first, but not as to what he paid after learning of the fraud.
The Green case, supra, concerns an unrecorded claim for which the purchaser of the land encumbered was held liable to the claimant to the extent of his payment to the vendor after he had been notified of the unrecorded claim.
In the recent case of Kantzer v. Southwest Home Investment Co., supra, the court affirmed the judgment rendered by the trial court, which apparently recognized the advancements made by the mortgagee, but not on the ground of priority, as is shown by the concluding paragraph of the opinion, which is as follows:
“There is quite a little criticism by appellant of the findings of fact made by the trial court, but as to these we find no substantial error. The argument that a mortgage for future advancement should, under some circumstances at least, have priority over mechanics’ liens subsequently acquired likewise goes out of the case when it is once determined that the work on the building began before the mortgage was executed and recorded.” (p. 403.)
We are not persuaded by the rulings in any or all of these decisions that the priority of a mortgage lien over mechanics’ liens, where the mortgage was executed and recorded before the commencement of the building, is limited to the amount of the advancements before the commencement of the work, especially where the mortgage, as in this case, does not provide for advancements. Neither do we think the rule of priority is affected in the example of counsel where the mortgagee undertakes to foreclose his mortgage when he has failed to advance or pay over a considerable part of the money promised. Of course, he could not recover a judgment for more than the amount he had in fact advanced and interest thereon, and perhaps only a prior lien to that extent because that is the whole amount which he had a right to recover under the mortgage because of his own failure to advance the balance secured by the mortgage.
Counsel for the mechanics’ lienholder state that they are not unmindful of the decision in the case of Martsolf v. Barnwell, 15 Kan. 612, and its approval in Lumber Co. v. Bowersock, 100 Kan. 328, 164 Pac. 156, but in view of the situation in this particular case they ask this court to reconsider and modify the rule stated in the Barnwell case, supra, and they refer to the decision in the case of Ky. Lbr. & Mill W. Co. v. Ky. Title S. B. & T. Co., 184 Ky. 244, as logical reasoning in support of their request. The opinion in the Kentucky case gives a priority to the mortgagee for actual advancements made prior to actual notice of the claims of mechanics and materialmen. The mortgage was not executed- until after the building had been commenced, which, under the statute, would deprive it of its priority, but on the other hand the court refers to a Kentucky statute which requires the mechanic and materialman, in order to procure and hold superior liens, to file notices of their expected liens. This they failed to do, so under these circumstances the court based the priority upon the time of actual knowledge of the mechanic’s claim by the mortgagee, and that gave a priority to the earlier advancements by the mortgagee and not to the later. We have no such statute requiring mechanics and materialmen to file notices of their expected or contemplated liens, and we are not convinced that the decision in the Barnwell case needs to be or should be modified. The following paragraph from the opinion in that case, written by Justice Brewer, is a clear and plain pronouncement of the rule in Kansas on this question:
“Again, it is said that the money was to be advanced as the work progressed, and that in fact only a small portion was advanced prior to the commencement of the work, and that, therefore, to the extent of such prior advancement alone, could Barnwell’s mortgage be preferred to the mechanic’s lien. In this we think counsel are mistaken. The mortgage was for a single, fixed amount, and contained no provision for future advances. Now, if it be true that equity will look behind the face of the mortgage, and date the liens from the times of the several advances of money by the mortgagee (and upon this question we express no opinion), it will also, upon the same principle, date the mechanics’ liens from the times of furnishing material and doing work.” (p. 618.)
We find no error in the priorities given the several lienholders, mortgagee, mechanics and materialmen as to either lot.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Pete Probst to recover a balance alleged to be due to him from the Weigand Tea & Coffee Company for services rendered as a coffee roaster. Plaintiff recovered judgment for $1,278.75, and defendant appeals.
The principal point of contention in the appeal is the application of the doctrine of res judicata. It appears that plaintiff was employed by the copartnership of the Weigand Tea & Coffee Company, composed of W. A. Weigand and E. J. Weigand, as a coffee roaster, and the roaster was to be furnished by him. He alleged that he served them in that capacity from 1922 until July 31, 1927. There is a dispute as to the terms of the employment and the amount of compensation to be paid. When their relations were severed plaintiff brought this action against the partnership for the amount alleged to be due to him up to and including July 31, 1927, to wit: $1,139.50 with interest from August 1, 1927. Contemporaneously with the filing of the partnership suit the plaintiff filed another case against the corporation to recover for the few days he served in August, 1927, and including in it a second count for the setting up of a roaster during that period. The corporation was organized in July, 1927, without notice to plaintiff, and the corporation took over the assets and assumed the liabilities of the partnership. The case against the corporation in the city court was tried there and was later appealed to the district court. Then there were two cases pending in the district court between the parties, one against the partnership and the other against the corporation. The corporation case, which came up by appeal, was first brought on for trial in the district court. An effort was then made to have the two cases consolidated and tried together, but that was resisted by the defendant, and the trial court also suggested a consolidation. The court remarked:
“I want the record to show in this case that the defendant'in this case has at all times refused to consolidate the case No. 69,425, which is an action involving the time up until the time covered in this action. The court has at all times insisted upon the consolidation of these cases and that the evidence in this case covers the entire period of the transaction between the Weigand partners and the Weigand corporation, and the plaintiff, in this action. Is that correct, Mr. Weigand?”
Mr. Weigand replied, “Yes,” and that the district court case—
“Involves also additional parties, and not the same parties exclusively that are now in this action, and we want the record to show that the defendant in this case has been ready and willing to have both cases referred to a court for accounting, and that when this was refused the defendant refused to consolidate them.”
Separate trials were then allowed and the corporation case was first tried. The plaintiff offered testimony as to services rendered in August, 1927, and for the setting up of the coffee roaster. On the part of defendant it offered evidence that plaintiff had been overpaid for his services rendered previous to August, 1927, and presented a number of checks given in payment, one of which was for $500 dated in August, 1927, and cashed in the following month, and also produced testimony about the agreements as to the amount of compensation plaintiff was to receive. In rebuttal plaintiff offered testimony touching the matter of overpayment and in doing so produced evidence of the compensation agreed to be paid by the partnership. On that trial the jury awarded the plaintiff $10 on the first count for services rendered in August, 1927, and $15 on the second count for setting up the roaster.
When the case against the partnership came up for trial defendant contended that the trial and judgment in the corporation case estopped the plaintiff from retrying- the partnership case and asked that the doctrine of res judicata be applied, contending that the facts put in issue or litigated in the former action cannot be reliti gated by the same party in the same or another action in any court. It is true that in the first action against the corporation, when the matter of overpayment was raised, much testimony was offered that was produced and was necessary to a recovery against the partnership, but the pleadings raised distinctly different issues and each asked a recovery, one against the partnership and the other against the corporation. Defendant urges that there must be an end to litigation and that a party should not be allowed to retry issues already litigated nor be permitted to vex the opposite party by repeated trials. The defendant was urged by plaintiff and also by the court to consolidate the cases and prevent the vexation of the second trial, but it insisted on separate trials and is not in a good position to complain of the vexation. The court tried the case on the theory that the corporation case involved only the balance due to plaintiff for his services to the corporation in the month of August, 1927, and for his claim for setting up the roaster about that time. It was so submitted to the jury and the merits of the partnership case were not in fact determined. In the corporation case the court refused to submit special questions relating to the dealings with the partnership and:
“. . . for the reason that there are only two questions involved in this case, and that is on a contract alleged to have been made about the first of August, 1927, and upon an action quantum meruit.”
There was no splitting of a cause of action as one was for services rendered the corporation and the other for services rendered the partnership. The two cases involved distinctly different causes of action, each with a different party. There was a lack of identity of parties and the partnership was not a party in the corporation case, and an execution upon a judgment in that case could not have been enforced against the copartnership. It turned out that the corporation had assumed the liability of the partnership, and when that fact was brought out plaintiff by leave of the court made the corporation an additional party defendant in this case, based on its assumption of liability. Defendant contends and cites authorities to the effect that a former judgment is conclusive not only on the questions actually tried and determined, but also upon all within the scope of the issues which might have been litigated and determined. Where, however, the actions are on different causes of action, the first judgment is not conclusive on matters which might have been litigated in the former action, but parties are only bound by what was in fact litigated and determined. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825; Hudson v. Remington, 71 Kan. 300, 80 Pac. 568; Brush v. Rich, 83 Kan. 531, 112 Pac. 158; 34 C. J. 909, 911.) Here the issues were different and the issue as to the partnership liability was not in fact actually litigated and determined in the corporation case, and it must be held that the court correctly held that the doctrine of res judicata did not apply or control.
The claim of the defendant that there was inconsistency between the findings of the jury approved by the court and its general verdict, is not sustained.
The instructions of the court, of which some complaint is made, are in harmony with the views expressed in the opinion and are without material error.
We find nothing material in the objections to the rulings on the admission of evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injury to person and property sustained in an automobile collision. The verdict was for plaintiff. The court set aside the verdict, and rendered judgment for defendant. Plaintiff appeals.
The collision occurred at a highway intersection. Porter’s automobile, driven by his wife, approached the intersection from the north. Three hundred feet north of the intersection was a highway sign warning of the intersection. Porter’s driver sounded- the horn of his automobile and reduced its speed, but the automobile entered the intersection at a speed of about thirty miles per hour. Thereafter nothing was done to avert a collision. Walker approached the intersection from the west at a speed of about twenty-five miles per hour. Porter entered the intersection first. Walker was on the right of Porter, and the left front of Walker’s automobile struck Porter’s automobile back of the right front fender. These facts were found by the jury. The jury also found Walker was negligent, Porter was not negligent, and Walker’s negligence caused the injury.
Porter abstracts and complains of but one instruction to the jury. The instruction advised the jury that, under the circumstances, the negligence of Porter’s driver should be regarded as his negligence. The instruction was properly given. The petition pleaded that Porter was operating his car, and he testified he was going to Topeka on business of his own.
The trouble with the general verdict and the special finding relating to who was and who was not negligent is that they disregarded the instructions of the court, which Porter did not abstract. For example, as the court told the jury, the statute required Porter to reduce speed as he approached the intersection to a rate not exceeding eight miles per hour, and to maintain such rate until entirely past the intersection. Had Porter done this, Walker would have been beyond the intersection before Porter arrived at the point of collision. No matter how negligent Walker may have been, Porter was not entitled to recover.
There is nothing else of importance in the case, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is the belated aftermath of a divorce case which was decided by the district court of Morris county on December 11, 1922, and affirmed in this court on March 8, 1924. (Revere v. Revere, 115 Kan. 575, 223 Pac. 1103.)
By one of the terms of that judgment plaintiff was required to pay to defendant—
“As permanent alimony the sum of S20 per month as long as she lives or until her remarriage.”
In August, 1930, plaintiff filed a motion in the district court asking to be relieved of that burden on the ground that it was wholly void for the reason that the court had no jurisdiction to render it.
Defendant countered with a motion to dismiss on various grounds —that no appeal had been taken from that particular feature of the judgment and that it was therefore final and conclusive; that plaintiff had ratified the judgment by payipg the required sums of $20 per month for several years; that the matter was res judicata and that the court was without jurisdiction to hear and determine plaintiff’s motion or to modify the judgment awarding permanent alimony to defendant. Defendant followed this motion with another in which she asked the court to fix a lump-sum judgment of permanent alimony in lieu of the judgment of’ 1922 which had awarded to her alimony in monthly payments for life or until her remarriage.
The trial court sustained plaintiff’s motion and canceled the monthly award of alimony, and overruled and denied both motions filed by defendant.
She appeals, invoking familiar rules of law to the effect that judgments which have become final cannot be disturbed by subsequenf proceedings. Thése rules, however, do not apply to judgments which a court had no power to make, and it has been repeatedly held in well-considered and stoutly contested cases that a district court has no power to make an award of permanent alimony in an indefinite amount to be payable in periodical installments.
In Conway v. Conway, 130 Kan. 848, 288 Pac. 566, which was an action for a divorce and for alimony, the district court granted a divorce to plaintiff and an award of alimony of $200 per month, payable monthly until her death or remarriage. This court held that such allowance of alimony was void, and that the district court was authorized to strike it from the judgment on motion of defendant made after the time to appeal had expired.
In Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409, it was said:
“The matter is covered by the statute which provides that where permanent alimony is allowed it must be decreed in a specified sum of money. It may be made payable in gross or installments, but the sum itself must be fixed. (R. S. 60-1511.)” (p. 289.)
See, also, Hardcastle v. Hardcastle, 131 Kan. 627, 293 Pac. 391.
And since the award of an indefinite amount of alimony was void, plaintiff’s motion to be relieved of it was fully warranted by the civil code, R. S. 60-3009, which provides:
“A void judgment may be vacated at any time, on motion of a party or any person affected thereby.”
On the other hand, the district court had no authority, in 1930, to fix a definite lump-sum award of alimony in lieu of its void award of 1922. The district court had no jurisdiction of the action of 1922 for any purpose except to vacate the void award. Indeed, a void judgment binds nobody• the party who nominally rests under it is not even compelled to invoke the code remedy prescribed in R. S. 60-3009 to get rid of it. He may simply ignore it and await some maneuver of his adversary to enforce it, at which time he may raise the defense that it is a nullity. It is only his convenience, not his necessity, which prompts one in plaintiff’s situation to invoke the relief available under R. S. 60-3009. (1 Freeman on Judgments, 5th ed., §§ 226, 282, 322.)
Appellant suggests that some different rule should apply to a judgment which has been subjected to appellate review, as in the case between these litigants. Whether affirmed or reversed on appeal any judgment which eventually has to be enforced, if valid, is that of the district court, although it may be one which that court has been directed to render by mandate of the supreme court.
In this case, when it was here on appeal (115 Kan. 575, 577) the allowance of alimony was complained of and subjected to appellate review, but the point was not then raised that the trial court had no jurisdiction to make an award of alimony in an indefinite amount payable in monthly installments of $20 until the death or remarriage of the appellant. In Wilson v. Montgomery, 22 Miss. 205, it was held:
“The affirmance of a void judgment, upon grounds not touching but overlooking its invalidity, does not make it valid.”
To the same effect were Jones v. Pharis, 59 Mo. App. 254, and Chambers v. Hodges, 23 Tex. 104.
The other objections to the disposition of these belated proceedings in the trial court have been carefully considered, but no error can be discerned therein.
The judgment is affirmed.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against David R. Gil-man, of Overland Park, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the Respondent alleged violations of KRPC 8.4(d) (2005 Kan. Ct. R. Annot. 504) (misconduct); KRPC 3.4(d) (2005 Kan. Ct. R. Annot 467) (fairness to opposing party and counsel); KRPC 3.5(c) (2005 Kan. Ct. R. Annot. 471) (impartiality and decorum to the tribunal); and KRPC 8.4(g) (2005 Kan. Ct. R. Annot. 504) (misconduct), but as will be clarified in the opinion, the hearing panel and this court found the evidence was sufficient only as to KRPC 8.4(d).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The panel made the following findings of fact and conclusions of law together with its recommendations to this court:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. David R. Gilman (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 05318. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Overland Park, Kansas .... The Respondent was admitted [to the] practice of law in the state of Kansas on June 26,1957.
“2. On December 9, 20Q3, at 10:00 a.m., the Respondent appeared in the Lenexa Municipal Court, with his client, Laurie Brandel, before the Honorable Kate Baird. The Court had previously scheduled Ms. Brandel’s case for trial at that time. Because the Court had a heavy docket, the Court did not call Ms. Brandéis case until 10:50 a.m.
“3. When the Court called Ms. Brandéis case, the Respondent and his client approached the bench and the Respondent requested a continuance. [Here, footnote 1 from the final hearing report stated: While the Respondent, in his letter to the disciplinary investigator in this case, indicated that the only purpose for his appearance that day was to request and obtain a continuance, during the disciplinary hearing, the Respondent testified that he intended to try Ms. Brandéis case that day, if it had been called at 10:00 a.m.’] The Respondent explained that he was also scheduled to appear in Montgomery County, Kansas. At that time, Judge Baird smelled an odor of alcohol coming from the Respondent and noticed that the Respondent’s speech was slurred. Judge Baird believed that the Respondent was impaired because of his use of alcohol.
“4. Because the Respondent appeared to be impaired, the.Court granted the Respondent’s request for a continuance and requested that the Respondent step to the bench without his client. Judge Baird told the Respondent that she thought she smelled alcohol on his breath. The Respondent told Judge Baird that he was fine and left the courtroom.
“5. In order to discuss this matter further with the Respondent, Judge Baird took a recess from calling the cases remaining on the docket, left the courtroom, and entered the Court Clerk’s area. Judge Baird approached the Respondent and asked him to come to her office.
“6. The Respondent came into Judge Baird’s office without his client. Judge Baird explained that she was concerned that he had appeared in court under the influence of alcohol and that she was also concerned about his ability to drive a vehicle. Based upon her concerns, Judge Baird asked the Respondent to take a preliminary breath test. The Respondent agreed.
“7. According to the Respondent, Judge Baird was shocked at the results of the preliminary breath test. Based upon the results of the preliminary breath test, Judge Baird directed the Respondent to not drive from the Courthouse. Additionally, Judge Baird told the Respondent that he needed to obtain a continuance of his case scheduled in Montgomery County, Kansas. The Respondent agreed to call someone and get a ride. He also agreed to seek a continuance of his case pending on Montgomery County, Kansas. Thereafter, Judge Baird observed the Respondent talking on the telephone.
“8. Apparently, the Respondent called his office and informed his secretary that he may get arrested for driving under the influence of alcohol. According to the Respondent’s testimony, the Respondent’s secretary told the Respondent to call her if he was arrested. The Respondent did not arrange for someone to pick him up from the Lenexa Municipal Court, nor did he call to seek a continuance of his case in Montgomery County, Kansas.
“9. The Respondent testified that he went out to his car and administered field sobriety tests to himself. He testified that he ‘counted backwards and . . . said the ABC’s.’
“10. The Respondent left the Lenexa Municipal Court driving his car. The Respondent drove to Montgomery County, Kansas, for his scheduled court appearance apparently without incident.
“11. On December 12, 2003, Judge Baird filed a complaint with the Disciplinary Administrator’s office. Frank Austenfeld investigated Judge Baird’s complaint. On January 29, 2004, the Respondent wrote to Mr. Austenfeld and responded to Judge Baird’s complaint. In his letter, the Respondent stated:
‘I am sorry that I have not responded to your letter, however, I have been in contact with Don Zemites and have been talking with him.
‘I agree that I had several drinks of whiskey [here, footnote 2 from the final hearing report stated: “Despite the fact that the Respondent stated in his letter to Mr. Austenfeld that he had had several drinks of whiskey, the Respondent testified that he had had only two shots of whiskey. The Respondent testified that after leaving the Wyandotte County, Kansas, courthouse earlier that morning, he stepped into a hole and his socks and shoes became wet. The Respondent testified that he drove home, changed his socks and shoes, and had two shots of whiskey before he traveled to the Lenexa Municipal Court.”] before going to Judge Baird’s Court with my client. The only purpose of my court appearance was to obtain a continuance in the case. My client had no problem with either me or my conduct.
1 do not believe that the PBT was accurate and that a more accurate reading would be .05 or .06. Needless to say I am embarrassed about this and it will not happen again.
‘I talked with Don Zemites today and I am hoping to get together with him next week.’
“12. On February 12, 2004, die Respondent appeared in die Lenexa Municipal Court in behalf of a client whose case had been set on the pro se docket. At drat tíme, the Respondent met with Ann Henderson, prosecutor. Ms. Henderson detected an odor of alcohol on the Respondent’s breath.
“13. Ms. Henderson informed the Respondent that she smelled alcohol on his breadi. Ms. Henderson told the Respondent that she was concerned about his ability to drive a car. The Respondent denied tiiat he smelled of alcohol but told Ms. Henderson that he had taken his medication with a beer that morning. [Here footnote 3 from the final hearing report stated: ‘At the hearing on this matter, tire Respondent denied having a beer with his medication. Rather, the Respondent testified that he had had a half a beer with his medication.’]
“14. Ms. Henderson requested that the Respondent submit to a prehminary breath test. The Respondent agreed. The prehminary breath test indicated that the Respondent had alcohol in his system. [Here, footnote 4 from the final hearing report stated: ‘The facts contained in paragraphs 12,13, and 14 are based on the complaint lodged by R. Ann Henderson. At the hearing on this matter, the Respondent did not rebut the information contained in her complaint and admitted at the hearing.’]
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(d). ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in conduct that is prejudicial to the administration of justice when he appeared in court after having consumed several drinks of whiskey. Because the Respondent appeared to be impaired, Judge Baird continued Ms. Brandel’s trial and had to call a recess to address the Respondent’s condition.
“2. In addition to alleging that the Respondent violated KRPC 8.4(d), the Deputy Disciplinary Administrator alleged that the Respondent violated KRPC 3.4(d), KRPC 3.5(c), and KRPC 8.4(g). The Hearing Panel concludes that the Deputy Disciplinary Administrator failed to present clear and convincing evidence that the Respondent violated those rules.
“3. KRPC 3.4(c) provides, in pertinent part, as follows:
‘A lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.’
The Deputy Disciplinary Administrator argued that Respondent knowingly disobeyed an order of the Court when he drove his vehicle from the Lenexa Municipal Court. The Hearing Panel concludes that Judge Baird did not have the authority to order the Respondent to refrain from driving his vehicle. Accordingly, Judge Baird’s direction, ordering the Respondent to refrain from driving his vehicle, was not a valid obligation of the tribunal. As such the Hearing Panel concludes that the Respondent did not violate KRPC 3.4(d).
“4. Lawyers shall not ‘engage in undignified or discourteous conduct degrading to a tribunal.’ KRPC 3.5(d). The Deputy Disciplinary Administrator argued that by appearing in court impaired by the use of alcohol, the Respondent engaged in ‘undignified or discourteous conduct.’ The Hearing Panel agrees that appearing in Court after having consumed ‘several’ drinks of whiskey, the Respondent engaged in ‘undignified’ conduct. However, the Respondent’s ‘undignified’ conduct was not degrading to the tribunal. No testimony was presented that he was disrespectful or discourteous to the Court. Accordingly, the Hearing Panel concludes that the Respondent did not violate KRPC 3.5(d).
“5. Finally, the Deputy Disciplinary Administrator alleged that the Respondent engaged in ‘other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). It is the position of the Hearing Panel that the ‘catchall’ provision of KRPC 8.4(g) does not apply if another provision of the Kansas Rules of Professional Conduct does apply. As such, because the Hearing Panel concludes that KRPC 8.4(d) applies, the Hearing Panel concludes that the provisions of KRPC 8.4(g) do not apply.
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, tlie Hearing Panel considered the factors outlined by die American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are die duty violated, the lawyer’s mental state, the potential or actual injuiy caused by die lawyer’s misconduct, and die existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal profession to maintain personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injuiy to die legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in tlie degree of discipline to he imposed. In reaching its recommendation for discipline, tlie Hearing Panel, in tills case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on six occasions.
“On December 17,1996, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.1, KRPC 1.2, and KRPC 8.4, in case number A6518. In that case, the Respondent filed an appeal without his client’s authorization and failed to appear in court to discuss the filing of tlie appeal.
“On January 28, 1992, the Disciplinary Administrator informally admonished tlie Respondent for failing to provide diligent representation, in violation of MRPC 1.3, in case number B5022. In that case, the Respondent failed to appear in court for a scheduled trial.
“On March 14, 1992, a Hearing Panel of tlie Kansas Board for Discipline of Attorneys held a hearing regarding case number B4882. In B4882, the Respondent failed to appear in court for trial and again for sentencing. Following die hearing, the Hearing Panel issued its Final Hearing Report, recommending that the Respondent be censured. On December 6, 1991, the Court issued its opinion censuring the Respondent for having violated MRPC 1.3, MRPC 1.4, and MRPC 8.4. In re Gilman, 249 Kan. 773 (1991).
“On October 18, 1988, the Disciplinary Administrator informally admonished the Respondent in case number B4171, for neglecting a client matter.
“On December 4,1987, a Hearing Panel of tlie Kansas Board for Discipline of Attorneys held a hearing regarding case number W3970. Following tlie hearing, the Hearing Panel issued a report recommending that tlie Disciplinary Administrator impose an informal admonition. On April 15, 1988, the Disciplinary Administrator imposed an informal admonition for neglecting a case.
“On July 7,1982, the Disciplinary Administrator informally admonished the Respondent for having violated DR 7-110(A), in case number W2490. The Respondent made a loan to a judge at the judge’s request. The Respondent and the judge had previously been law partners and were close personal friends.
“Refusal to Acknowledge Wrongful Nature of Conduct. During the Respondent’s testimony he failed to acknowledge the wrongful nature of his conduct. The Respondent minimized, rationalized, and excused his conduct. The Hearing Panel finds the Respondent’s lack of remorse to be an aggravating factor in this case.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1957. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 46 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found die following mitigating circumstances present:
“Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“Remoteness of Prior Offenses. The discipline previously imposed is remote in time and in character to the misconduct in this case.
“RECOMMENDATION
“The Respondent recommended that the allegations that the Respondent violated the Kansas Rules of Professional Conduct be dismissed, arguing that the rules which govern our profession do not prohibit attorneys from appearing in court after having consumed alcohol.
“While the Hearing Panel acknowledges that none of the Kansas Rules of Professional Conduct specifically prohibit attorneys from appearing in court after having consumed alcohol, the rules prohibit many of the consequences which may be expected from appearing in Court after consuming alcohol. When die Respondent appeared in Court after having consumed several drinks of whiskey, he caused die Court to grant his request for a continuance and recess so that the question of his impairment could be further examined and die rights of his client protected. The Respondent’s conduct interfered with the administration of justice and violated KRPC 8.4(d). Accordingly, the Hearing Panel declines to dismiss the allegations as requested by the Respondent.
“The Deputy Disciplinary Administrator recommended that the Respondent be suspended from the practice of law. The Deputy Disciplinary Administrator based his recommendation on the serious nature of the misconduct and the fact that the Respondent has been previously disciplined in six cases. While the Re spondent’s conduct is serious and requires appropriate discipline, the Hearing Panel does not believe that the Respondent’s conduct warrants a suspension from the practice of law. Since the only consequences of the drinking appear to have been to cause the Court to grant a continuance which it may not have otherwise granted, the Healing Panel does not believe it appropriate to discipline on the basis of possible consequences which did not occur.
“The Hearing Panel is concerned, however, that the Respondent does not appreciate the seriousness of his misconduct. The Respondent acknowledged no wrongdoing and made no promises of reform, other than in his initial written response to the investigator. No evidence was presented that the Respondent did, in fact, contact Don Zemites [of the Kansas Impaired Lawyers Assistance Program] or seek any professional help. Recause the Respondent does not appear to appreciate the serious nature of his misconduct, the Hearing Panel believes that some form of public discipline is appropriate. Given the remote nature of the Respondent’s prior discipline, the Hearing Panel finds it of limited relevance and recommends drat censure, to be published in the Kansas Reports, is the appropriate discipline in this case.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
DISCUSSION
Respondent did not file exceptions to the final hearing report of the panel. Accordingly, pursuant to Supreme Court Rule 212(d) (2005 Kan. Ct. R. Annot. 297), the panel’s findings of fact are deemed admitted. These findings of fact are supported by clear and convincing evidence and also support the panel’s conclusions of law. We adopt the findings and conclusions of the panel.
A majority of this court agrees with the panel’s recommendation for discipline in this case. However, a minority of this court would discipline Respondent by imposing a suspension of his license to practice law in this state.
All members of the court express the same concerns of the panel in this case: Respondent does not appreciate the seriousness of his misconduct and the record supports the conclusion that Respondent minimized, rationalized, and excused his drinking misconduct.
We note that Respondent appeared in the Lenexa Municipal Court on December 9th with “an odor of alcohol coming from the Respondent” and that his “speech was slurred.” The municipal judge believed Respondent to be impaired because of his use of alcohol.
After granting a continuance to Respondent’s client, the court took a recess to address Respondent’s condition. Respondent was asked to take a prehminary breath test which Respondent submitted to. The court was shocked with the result of the test and directed Respondent not to drive from the courthouse. Notwithstanding this admonition, Respondent administered himself a field sobriety test and left in his automobile after he passed his test.
Approximately 2 months later, Respondent was present in the same courthouse when the prosecutor smelled alcohol on his breath. She confirmed the presence of alcohol based upon an agreed to preliminary breath test. At the time, the prosecutor was concerned about Respondent’s ability to drive a car. The similarity of the two charges adds weight to the court’s concern that Respondent may have a serious alcohol problem that should be addressed.
There is no indication in the record that Respondent has taken any action to address the above concern. Instead, Respondent demonstrates no remorse, acknowledges no wrongdoing, and has taken no steps to address what may be a serious problem. Yet, the record supports the findings and conclusions by clear and convincing evidence that Respondent violated the provisions of KRPC 8.4(d) [2005 Kan. Ct. R. Annot. 504]: “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” Respondent engaged in such conduct when he appeared in court after having consumed several drinks of alcohol. The court had to continue the case Respondent was appearing on because the court concluded that Respondent was impaired by reason of the alcohol. Additionally, a recess had to be called to address the condition of Respondent.
Thus, in addition to imposing the panel’s recommended discipline, this court urges Respondent to contact Mr. Don Zemites, Executive Director, Kansas Impaired Lawyers Assistance Program, for advice and help with what may be a serious problem for Respondent. See Supreme Court Rule 206 (2005 Kan. Ct. R. Annot. 268). Based upon the discipline imposed, this court is not in a position to order Respondent to seek the above help. The recommendation, however, is made for the benefit of Respondent, his clients, the courts in which he practices, and his continued practice of law in this state.
It Is Therefore Ordered that Respondent, David R. Oilman, be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2005 Kan. Ct. R. Annot. 247) for violation of KRPC 8.4(d).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to Respondent.
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The opinion of the court was delivered by
Larson, J.:
This is Andrew Jackson’s direct appeal of his jury convictions of first-degree premeditated murder, kidnapping, and conspiracy to commit murder.
Numerous trial errors which we will separately consider are alleged. We first set forth the sad facts and proceedings giving rise to this appeal.
Jackson met Bovi Combs and Shecora Clanton while riding buses in Kansas City, Missouri. Their chance meeting resulted in the murder of Delesha Williams, a woman Combs met at a bus stop in Kansas City, Missouri.
Combs wanted to kill Williams because he believed she was involved in his sister’s death. Clanton, who was Combs’ girlfriend, agreed to help. They planned to steal items from Williams’ house after the murder. Combs and Clanton initially planned to poison Williams with stiychnine but were unable to make such a purchase over the counter.
Clanton rented a U-Haul truck to cany the stolen property from Williams’ house. After picking up the truck, Combs and Clanton returned to Clanton’s house, where Combs called Jackson and inquired as to how Jackson would kill someone. Combs then paged Williams several times and waited at Clanton’s house until 9:30 p.m., when Williams returned Combs’ page.
Combs and Clanton then drove to Jackson’s apartment to pick him up. When Combs and Clanton arrived, Jackson produced a syringe and a white chemical substance he had prepared for them. Jackson told them to stick Williams with the syringe and she would die. Although Jackson initially refused to go with Combs and Clan-ton because he thought they had waited until too late at night, he changed his mind and accompanied Combs and Clanton to Williams’ house in Kansas City, Missouri.
As the trio was pulling up to Williams’ house, they noticed a car in the driveway with its lights on. They drove past the house a couple of blocks before turning around and coming back. When they returned, the car was gone. Clanton parked the U-Haul truck, and Combs knocked on Williams’ door. While Combs was at the front door, Williams’ cousin walked up to the door. He had been in a minor car accident and needed a ride home. Williams opened the door for Combs and her cousin. Combs returned to the U-Haul truck a few minutes later with Williams’ cousin and told Clan-ton and Jackson to drive Williams’ cousin home.
After taking Williams’ cousin home, Clanton and Jackson joined Combs and Williams at Williams’ house. Williams did not have anything for them to drink, so Jackson walked to a nearby conven ience store and purchased soda and cigarettes. After visiting with Combs, Clanton, and Jackson for awhile, Williams decided to go to bed. She invited the trio to spend the night at her house.
Combs, Clanton, and Jackson waited for Williams to fall asleep so they could inject her with the chemical in Jackson’s syringe. When Williams was asleep, Jackson hit Williams with a mallet and then jumped on top of her and started strangling her. Williams struggled with Jackson. The two fell off the bed and continued fighting on the floor. Jackson eventually subdued Williams and told Combs to get the syringe from his coat pocket. However, Jackson broke the syringe before he could inject Williams.
Without a syringe to poison Williams, Combs suggested that Jackson strangle her. Combs found an extension cord and gave it to Jackson. Jackson broke the extension cord before he could strangle Williams, so he asked Combs for another one. Before Combs could find another extension cord, Jackson told Combs that he was tired of struggling with Williams. Combs suggested that Jackson stab Williams, but Jackson told Combs that if he wanted Williams dead, he would have to do it himself.
Combs took a knife and began slashing and stabbing Williams until he bent the knife. While Combs went to the kitchen to get another knife, Williams managed to crawl out of her bedroom into the hallway. Combs slashed at Williams again and lacked her in the face and the stomach. Williams appeared to be unconscious, lying in a puddle of blood in the hallway. She had multiple injuries to her head, neck, and shoulders caused by blunt force impacts, the attempted strangulation, and the stabbings and slashes with the knife.
Because Combs wanted to have all of Williams’ things loaded into tire U-Haul before Williams’ mother returned home from work, they left Williams lying in the hallway and began loading things into the U-Haul truck. They took a big screen television (TV), two smaller TV’s, a video cassette recorder, and several telephones. Before leaving, they loaded Williams into the back of the U-Haul truck. Jackson told police that Williams walked to the back of the U-Haul truck and Combs threw her in.
Clanton drove Jackson back to his apartment in Kansas City, Missouri, where he got into the back of the U-Haul and retrieved a small television to take with him. Jackson told Combs to never call again and “you never heard of me.” Combs and Clanton then drove to a store and purchased a padlock for the back of the U-Haul truck before driving back to Clanton’s house in Kansas City, Missouri. After staying at Clanton’s house for about 30 minutes, Combs and Clanton left in the U-Haul truck to deliver the big screen TV to Combs’ uncle. While they were driving, Clanton heard Williams’ screams from the back of the U-Haul. Combs suggested that Clanton find a wooded area to dump Williams’ body, so Clanton drove to a wooded area near Washington High School in Kansas City, Kansas. At this point, Combs threw Williams from the truck, hit her with a large log, drove back and forth over her upper torso several times, and threw her body into the woods.
Combs and Clanton were arrested a few hours later, and both gave statements to the poli.ce implicating Jackson. Jackson turned himself in to Kansas City, Missouri, police a few days later. Clanton testified extensively at Jackson’s trial. A jury convicted Jackson of first-degree premeditated murder, kidnapping, and conspiracy to commit murder. The district court sentenced Jackson to a hard 50 life sentence.
Jackson appeals his convictions and his sentence directly to this court pursuant to K.S.A. 22-3601, raising a number of issues. He first claims that Kansas does not have jurisdiction to prosecute him. If we conclude that Kansas has jurisdiction, Jackson contends his statutory right to a speedy trial was violated; the trial court failed to properly instruct the jury; the trial court erroneously admitted evidence, including gruesome photographs, hearsay statements, and his involuntary confession; he did not receive a fair trial because of cumulative errors; and, finally, his convictions are not supported by sufficient evidence. If we affirm Jackson’s convictions, he argues the hard 50 sentencing scheme is unconstitutional or, in the alternative, that his hard 50 sentence is not supported by sufficient evidence.
JURISDICTION
Jackson claims that Kansas does not have subject matter jurisdiction over the charged offenses because he never entered the state of Kansas or committed any act within Kansas. An appellate court reviews a question of subject matter jurisdiction using a de novo standard. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003).
Subject matter jurisdiction for crimes in Kansas is controlled by K.S.A. 21-3104, which provides in pertinent part:
“(1) A person is subject to prosecution and punishment under the law of this state if:
(a) He commits a crime wholly or partly within this state; or
(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or
(c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state.
“(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within this state, the death is presumed to have occurred within the state.”
Although K.S.A. 21-3104 has been interpreted broadly, State v. Grissom, 251 Kan. 851, 889, 840 P.2d 1142 (1992), this court has recognized limits to its application. See State v. Palermo, 224 Kan. 275, 277, 579 P.2d 718 (1978). In Palermo, the State sought review of the district court’s decision to set aside the verdict and acquit the defendant on a charge of selling heroin. Palermo sold the drugs to a person in Missouri, who then sold the drugs to an informant in Kansas. Because Palermo did not come into Kansas and did not personally participate in the drug sale in Kansas, he was tried under an aiding and abetting theory. The Palermo court affirmed the district court’s dismissal, holding that Kansas cannot assert jurisdiction over a crime under an aiding and abetting theory if the defendant never entered Kansas and could not reasonably foresee that his or her act would cause, aid, or abet the commission of a crime in Kansas. 224 Kan. at 277.
Relying on Palermo, Jackson argues it was not reasonably foreseeable that Combs and Clanton would take Williams to Kansas and kill her. He argues that his participation in the events leading up to Williams’ death ended hours before Combs and Clanton drove to Kansas, killed Williams, and dumped her body. Because he was not involved in any of the last-minute decisions, he contends he could not have known that Combs and Clanton would murder Williams and could not have aided and abetted in Williams’ murder and kidnapping in Kansas. To analyze this argument, we must look at each charge individually to determine whether Combs’ and Clanton’s actions were reasonably foreseeable to Jackson.
Regardless of whether Jackson was involved in the last-minute decision making, it was certainly reasonably foreseeable that Combs and Clanton would finish the murder that Jackson helped start. Before they left the house, Jackson became weary of struggling with Williams and told Combs that if he wanted Williams dead, he could do it himself. Jackson told police that Williams walked to the back of the truck and Combs threw her in, indicating that Jackson knew Williams was alive in the back of the U-Haul when he got out at his apartment in Kansas City, Missouri. Jackson would have seen Williams in the back of the U-Haul truck when he retrieved a TV from it before he went into his apartment. Moreover, it was reasonably foreseeable that the beating, stabbing, and strangulation inflicted on Williams would disable her, making it easier for Combs and Clanton to finish the murder in some manner. Jackson’s refusal to participate in the final decision-making or the final acts that ended Williams’ fife does not relieve him of responsibility because he knew or should have known that Williams would not survive.
Under the same reasoning, Williams’ kidnapping was foreseeable and, in fact, was already occurring. Jackson knew that Combs and Clanton had Williams in the back of the U-Haul. It was foreseeable that Combs and Clanton would continue to confine Williams in the U-Haul until they could complete her murder. Jackson knew that Combs planned to get a padlock for the back of the U-Haul and told police about it during his interrogation. Jackson made no attempt to rescue Williams from the U-Haul truck or to prevent her impending death. He did not offer to take Williams with him when he got out of the U-Haul. He did not encourage Combs and Clanton to let Williams go, and he did not call the police to alert them to Williams’ presence in the back of the U-Haul truck. Instead, Jackson told Combs to get rid of his telephone number, not to call him anymore, and to forget he ever knew Jackson.
Even though it was reasonably foreseeable that Combs and Clan-ton would continue the kidnapping of Williams and complete the murder that Jackson had started, Jackson argues that it was not reasonably foreseeable that they would perform these acts in Kansas. This argument, however, overlooks Jackson’s close proximity to Kansas and the mobility of the U-Haul truck. Jackson’s apartment, Clanton’s house, and Williams’ house are all within 5 miles of the Kansas border. Clanton could easily drive the U-Haul truck 5 miles into Kansas to finish what the trio had started. The fact Jackson was not involved in the decision to go to Kansas does not make the trip unforeseeable.
The State prosecuted Jackson under an aiding and abetting theoiy for the crimes of first-degree premeditated murder and kidnapping. “Any person who counsels, aids, or abets in the commission of any offense maybe charged, tried, convicted, and sentenced in the same manner as if he or she were a principal. [Citation omitted.]” State v. Wakefield, 267 Kan. 116, 142, 977 P.2d 941 (1999). Because it was reasonably foreseeable that Combs and Clanton would continue to confine Williams and drive to Kansas to complete the murder, the State has jurisdiction to prosecute Jackson for the crimes of first-degree premeditated murder and kidnapping under an aiding and abetting theory even though Jackson never personally entered Kansas.
Although the foreseeability analysis applies to die first-degree murder and kidnapping charges, it does not apply to the conspiracy charge. A conspiracy may be prosecuted in any jurisdiction where an overt act in furtherance of the conspiracy occurred, regardless of whether the defendant actually entered the state or district of trial. State v. Campbell, 217 Kan. 756, 779, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975). The defendants in Campbell contended they could not be charged with conspiracy in Shawnee County because neither the agreement nor any overt act in which they participated was alleged to have been committed there. The court noted the indictment alleged the conspiratorial agreement occurred in Shawnee County and 10 of the separately numbered overt acts occurred there. The Campbell court said: “It is immaterial that tire particular complainants may never have entered Shawnee county during the existence of the conspiracy.” 217 Kan. at 779. The Campbell court relied on Downing v. United States, 348 F.2d 594, 598 (5th Cir.), cert. denied 382 U.S. 901 (1965), and its holding that “ ‘[a] conspiracy may be prosecuted in the district where it was formed or in any district in which an overt act was committed in furtherance of its objects.’ ” 217 Kan. at 779. The Campbell decision further relied on K.S.A. 21-3104.
In our case, the actual killing was an overt act in furtherance of the conspiracy to commit murder. Kansas clearly has jurisdiction to prosecute Jackson for conspiracy to commit murder because an overt act in furtherance of the conspiracy occurred in Kansas.
We hold that the State properly exercised its jurisdiction in prosecuting Jackson for the crimes of first-degree premeditated murder, kidnapping, and conspiracy to commit murder. We proceed to the other trial issues Jackson raises.
SPEEDY TRIAL
Jackson was arraigned on October 10, 2001, and his trial was originally set for January 7, 2002, 89 days after his arraignment. Jackson was held in custody solely for trial on these charges, so die State had 90 days after arraignment to bring him to trial. See K.S.A. 22-3402(1). However, after continuances for the court’s calendar and the availability of evidence, Jackson’s trial date was continued until May 1, 2002. Jackson claims that his trial did not comply with the speedy trial requirements of K.S.A. 22-3402(1).
Jackson raises two arguments in support of this claim. First, he argues the trial court improperly granted two 30-day continuances due to congestion in the court’s calendar. Second, he argues the State failed to malee a sufficient showing of materiality or reasonable efforts to support a 90-day continuance to secure evidence. An appellate court reviews the application of the speedy trial stat ute as a question of law using a de novo standard of review. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
K.S.A. 22-3402(1), in applicable part, provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
K.S.A. 22-3402(3)(d) allows the trial court to continue a trial without violating the defendant’s statutory speedy trial right if “[b]ecause of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section.” The trial court may only continue the defendant’s trial one time for no more than 30 days based on this exception to the speedy trial rule. K.S.A. 22-3402(3)(d).
The trial court in this case issued a 30-day continuance pursuant to K.S.A. 22-3402(3)(d) on April 1, 2002, because the trial of Combs, Jackson’s codefendant, extended beyond the time previously allotted by the court. Although Jackson did not object to this continuance, he claims that the continuance on April 1 was the second 30-day continuance pursuant to K.S.A. 22-3402(3)(d), in violation of the statute. To support this claim, he points to a note on the trial judge’s criminal docket notice of scheduled trials, dated November 28, 2001, stating: “It is expected that Jackson will be severed from the co-defendants set on 1-7, but will not waive speedy trial. Thus I am giving this setting for the expected 30-day continuance.” (Emphasis added.)
On December 4, 2001, the State moved to sever Jackson’s trial from Combs’ trial. On December 28, 2001, the trial court granted the State’s motion to sever; however, it did not set a new trial date for Jackson. The State moved for a 90-day evidentiary continuance on December 31, 2001. The trial court granted the State’s motion for a continuance on January 2, 2002, and set Jackson’s trial for April 1, 2002. The record does not contain an order continuing Jackson’s trial from January 7, 2002, until January 28, 2002, as the court anticipated on November 28. Jackson cites no authority to support his contention that the note on the court’s November 28 docket notice was the equivalent of a court order for a continuance. Because the court’s anticipatory note does not amount to a court order, the trial court did not erroneously grant two 30-day continuances in violation of K.S.A. 22-3402(3)(d).
For his second argument, Jackson asserts that the State faded to meet the statutory standard for a 90-day evidentiary continuance to complete the DNA testing. The State requested a continuance to complete the processing of DNA evidence from the multiple crime scenes. Pursuant to K.S.A. 22-3402(3)(c), the trial court may grant a continuance without violating the speedy trial rule when
“[tjhere is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to bglieve that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date.”
We have previously upheld continuances of up to 120 days for DNA testing in murder cases without specifically analyzing whether the DNA evidence was material. See State v. Green, 254 Kan. 669, 672-73, 867 P.2d 366 (1994); State v. Green, 252 Kan. 548, 551, 847 P.2d 1208 (1993) (codefendant brother to prior Green case, 112-day continuance). Nevertheless, Jackson argues that the DNA evidence was not material because he did not contest the identity of the victim, the location of the murder, the cause of death, or the identity of the murderer. However, contraiy to Jackson’s argument, these issues were material because the State prosecuted Jackson as an aider and abettor. In order to establish Jackson’s guilt, the State had to prove that a crime was committed by Jackson’s codefendants. The DNA evidence established that Williams’ blood was on Combs’ clothing and the knife found in Combs’ possession. Even though the DNA evidence did not directly implicate Jackson, it implicated his codefendants and corroborated Clanton’s testimony.
Jackson further argues that the State failed to use reasonable efforts to procure the DNA evidence. The DNA evidence was in itially collected in June 2001 by Kansas City, Missouri, crime scene investigators and submitted to the Kansas City, Missouri, crime lab. Due to a backlog of 2,000 homicide cases, including 119 cases that required DNA testing, the DNA evidence for Jackson’s case was not available in January 2002 for his original trial date. The prosecutor began contacting Kansas City, Missouri, prosecutors and crime lab personnel about processing the evidence on June 6,2001, 2 days after Williams was murdered. The prosecutor continued her efforts to procure the evidence by sending letters and making multiple phone calls to crime lab personnel. On December 28, 2001, the prosecutor was informed that regardless of the letters and telephone calls, the evidence could not be processed any faster because of the large backlog and insufficient resources.
Jackson argues that the State should have transferred the evidence to the Kansas Bureau of Investigation or another lab to expedite the testing. However, the State advised the trial court that the KBI had a backlog as well and had been forced to close its lab for 2 weeks because of facility problems, further aggravating the KBI’s existing backlog. The State argues that it could not have had the evidence processed any faster at another lab and that transferring a large amount of evidence would have raised numerous issues regarding the chain of custody.
We hold that the State’s efforts to procure the DNA evidence for trial were reasonable. Although the State can inform crime labs of trial deadlines and encourage them to process evidence as quickly as possible, it cannot control the crime labs’ schedules or case loads. In this case, the State informed and encouraged the crime lab at reasonable opportunities, beginning immediately after Williams’ body was found, to expedite the evidence testing. The State is not responsible for the other 119 backlogged cases that required DNA testing. Likewise, the State is not responsible for the resource scheduling at the crime lab.
Jackson has failed to demonstrate any error in commencing his trial. The trial court only issued one order for a 30-day continuance due to the congestion in the court’s calendar and that continuance complied with K.S.A. 22-3402(3)(d). Additionally, the State’s request for an evidentiary continuance complied with K.S.A. 22- 3402(3)(c). The trial court did not violate Jackson’s statutory right to a speedy trial.
JURY INSTRUCTIONS
Jackson raises several arguments regarding the trial court’s jury instructions. First, he argues that the trial court failed to instruct the jury regarding his defenses of withdrawal and compulsion. Second, Jackson asserts that the trial court improperly expanded the instruction for aiding and abetting. Next, Jackson contests the jury instruction about jurisdiction in Kansas. Finally, Jackson argues the trial court should have instructed the jury on felony murder as a lesser included crime of first-degree premeditated murder.
Defenses of Withdrawal and Compulsion
Jackson contends he acted under duress and withdrew from the criminal enterprise before Combs and Clanton drove to Kansas and murdered Williams. Because he relied on the defenses of compulsion and withdrawal, Jackson asserts the trial court should have instructed the jury as to these defenses as he requested.
A trial court is required to instruct the jury regarding the law applicable to the defendant’s theory when there is evidence to support the theory, even if the evidence is slight and supported only by the defendant’s own testimony. An appellate court must review the evidence in a light most favorable to the defendant if he or she requests the instruction. State v. Scott, 250 Kan. 350, 357, 827 P.2d 733 (1992).
Jackson first argues that under the facts, he was entitled to a jury instruction on his withdrawal defense. He limits his argument for the withdrawal instruction to the murder charge. However, if this court were to agree with Jackson’s argument, it would require us to abrogate the current law regarding the defense of withdrawal.
The State prosecuted Jackson as an aider and abettor to murder. Kansas does not recognize the defense of withdrawal from aiding and abetting. State v. Kaiser, 260 Kan. 235, 248-49, 918 P.2d 629 (1996). Although Jackson asks us to overturn Kaiser, he fails to argue any reason for reversing that decision. We have reaffirmed Kaiser in State v. Speed, 265 Kan. 26, 52, 961 P.2d 13 (1998), and State v. Straughter, 261 Kan. 481, 482, 932 P.2d 387 (1997), and find no reason to overturn it now. The defense of withdrawal is not available to Jackson as an aider and abettor; thus, the trial court did not err when it refused to instruct the jury on the defense of withdrawal.
Jackson also argues that he was compelled to. beat and strangle Williams because he was afraid of Combs. The defense of compulsion is defined by K.S.A. 21-3209, which provides:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
Although K.S.A. 21-3209(a) precludes the application of compulsion to murder or voluntary manslaughter, Jackson argues the instruction applies to the kidnapping and conspiracy charges and to attempted murder as a lesser included crime of murder. The defense of compulsion requires coercion or duress to be present, imminent, impending, and continuous. It may not be invoked when the defendant had a reasonable opportunity to escape or avoid the criminal act without undue exposure to death or serious bodily harm. State v. Matson, 260 Kan. 366, 385, 921 P.2d 790 (1996).
In State v. Myers, 233 Kan. 611, 615-16, 664 P.2d 834 (1983), this court concluded that compulsion was not available as a defense because the defendant had opportunities to escape from his codefendant and did not contact the authorities to report the crimes. We can apply the same analysis to this case. Jackson had two opportunities to escape from Combs, once when Jackson and Clanton drove Williams’ cousin home and again when Jackson went to the convenience store alone for soda and cigarettes. Jackson did not use either of these opportunities to flee from Combs. In addition, Jackson did not alert law enforcement at any time. Because Jackson had a reasonable opportunity to escape and avoid any criminal acts with Combs and Clanton and to summon law enforcement, he cannot invoke the compulsion defense. The trial court did not erroneously deny Jackson’s request for the instruction.
Aiding and Abetting Instruction
Jackson argues the trial court erroneously expanded on the PIK Crim. 3d 54.05 and 54.06 instructions for aiding and abetting, see K.S.A. 21-3205, by adding language to read as follows:
“Instruction No. 9
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.
“In addition, a person is also hable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and abetting in the commission of a crime the defendant must imllfully and knotvingly associate himself with the unlawful venture and willfully participate in it as he would in something he uHshes to bring about or to make succeed.” (Emphasis added.)
An appellate court must consider all of the instructions together, read as a whole. “If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Cordray, 277 Kan. 43, 48, 82 P.3d 503 (2004). Trial courts should use the pattern jury instruction unless the facts of a particular case are unique and require modifying the pattern instruction. If the facts are unique, the court should not hesitate to add language or otherwise modify the pattern instruction. State v. Walker, 276 Kan. 939, Syl. ¶ 7, 80 P.3d 1132 (2003).
Jackson admits that the facts in this case are unique and the instruction did fairly and properly state the law. But, he argues that there was no evidence to support a finding of mere presence or mere association. He further argues the instruction misled the jury toward conviction because it precluded the juiy from considering his dissociation from Clanton and Combs.
We find no merit in Jackson’s argument. Withdrawal was not available as a defense to Jackson. Because Jackson’s withdrawal theory was invalid as a matter of law, the court did not err in the language of the instruction.
Kansas Jurisdiction
Next, Jackson asserts the trial court improperly instructed the jury regarding the jurisdiction of Kansas to prosecute him. The trial court gave the following instructions for Kansas jurisdiction:
“Instruction No. 19
“The place where the conspiracy was formed is immaterial if at least one of the overt acts alleged and proved took place within the State where the defendant is tried.”
“Instruction No. 20
“A person is subject to prosecution and punishment under the law of this state if he commits a crime wholly or partly within this state.
“An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If die body of a homicide victim is found within tíre state, the deadr is presumed to have occurred within the state.
“It is not a defense that the defendant’s conduct is also a crime under the laws of anodrer state or of the United States or of another countiy.”
Jackson’s argument as to these instructions is the same argument he raised earlier when he claimed that Kansas did not have jurisdiction to prosecute him because he did not enter into or commit any acts in Kansas. Jurisdiction is a question of law to be decided by the court, not the jury. See State v. James, 276 Kan. 737, 744-45, 79 P.3d 169 (2003). We have already resolved the issue of jurisdiction against Jackson. We find no merit in his argument that the juiy instructions misled tire juiy regarding the criminal jurisdiction of Kansas under K.S.A. 21-3104.
Felony-Murder Instruction
Finally, Jackson argues the trial court should have instructed the jury on felony murder and attempted murder as lesser included offenses to first-degree, premeditated murder. Jackson requested the instructions, so we must analyze this issue in a light most favorable to Jackson. See Scott, 250 Kan. at 358.
“A criminal defendant has a right to an instruction on ail lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to tire defendant’s theory, would justify a juiy verdict in accord with the defendant’s theory and (2) the evidence at trial did not exclude a theory of guilt on the lesser offense. [Citation omitted.]” State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999).
K.S.A. 2003 Supp. 21-3107(2) defines a lesser included offense as
“(a) A lesser degree of the same crime;
“(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
“(c) an attempt to commit the crime charged; or
“(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).”
Felony murder and first-degree premeditated murder are both defined by K.S.A. 21-3401. Proof of felony murder requires proof of all of the same elements as premeditated murder, so it is not a lesser included offense pursuant to K.S.A. 2003 Supp. 21-3107(2)(b). See State v. Young, 277 Kan. 588, 593-94, 87 P.3d 308 (2004) (noting that felony murder and premeditated murder define the same crime of first-degree murder). Jackson argues that felony murder is a lesser included offense because it carries less mandatory prison time than premeditated murder. However, the statute does not define lesser included offenses by die sentence imposed. Because felony murder is not a lesser included offense of first-degree premeditated murder, the trial court did not err when it denied Jackson s request for a felony-murder instruction.
Conversely, attempted murder is a lesser included offense pursuant to K.S.A. 2003 Supp. 21-3107(2)(c), so die trial court was required to give that instruction if there was evidence to support it. See State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997). Jackson does not dispute that Williams died in Kansas after being run over by Combs and Clanton. Rather, he argues that he did not participate in the killing because he withdrew prior to the actual murder. As previously stated, Jackson cannot use the defense of withdrawal because he was tried under an aiding or abetting the ory. Therefore, this issue is without merit. There is no evidence to support a finding that Jackson, Combs, and Clanton attempted but were unsuccessful in murdering Williams. The trial court did not err when it refused to give an instruction on attempted murder.
ADMISSION OF EVIDENCE
Jackson raises three issues regarding the admission of evidence. First, Jackson argues the trial court erroneously admitted gruesome photographs. Next, Jackson argues the trial court erroneously admitted hearsay statements made by Combs. Finally, Jackson argues the trial court erroneously admitted his confession.
Gruesome Photographs
Jackson claims the trial court erroneously admitted gruesome photographs and a videotape of the crime scene. Jackson argues he did not dispute Williams’ death or the manner in which Combs and Clanton killed her, so the visual images were irrelevant.
The trial court has wide discretion for admitting photographs in a murder case. The trial court’s decision to admit gruesome photographs will not be reversed on appeal unless the defendant demonstrates that the trial court abused its discretion. State v. Pennington, 276 Kan. 841, 848, 80 P.3d 44 (2003).
Relevant evidence is any “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevancy is determined as a matter of logic and experience rather than as a matter of law, but there must be some material or logical connection between collateral facts and the inference or result they are supposed to establish. 276 Kan. at 847.
Jackson’s argument overlooks the State’s theory that Jackson was guilty as an aider and abettor rather than as a principal in Williams’ murder. Recause the State proceeded under an aiding and abetting theory, it was essential to its burden of proof that it establish the actions of the principals, Combs and Clanton. The photographs were relevant to establish the nature of the injuries inflicted on Williams and to explain the cause of her death. Accordingly, the trial court did not err by admitting the photographs and the crime scene videotape into evidence.
Hearsay Statements
Next, Jackson claims the trial court improperly admitted hearsay statements from Combs. Although Combs did not testify, Clanton testified she overheard Combs talking to Jackson on die telephone. Although she could not hear what Jackson was saying, she testified, over Jackson’s objection, that Combs asked Jackson “what he would do or how would he go about killing somebody.” Clanton admitted Combs told her he was talking to Jackson, but she could not be certain who was on the other end of the conversation because she did not hear the other person.
Jackson requests a de novo standard of review, citing State v, Deines, 268 Kan. 432, 434, 997 P.2d 705 (2000). However, Deines does not address the admissibility of hearsay or any other evidence and does not properly state the standard of review for this issue.
We have recently clarified our standard of review in State v. Elnicki, 279 Kan. 47, 51, 105 P.3d 1222 (2005), and State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). In Carter, we said:
“An appellate court’s first consideration when examining a challenge to a district court’s admission of evidence is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” 278 Kan. 74, Syl. ¶ 1.
Jackson does not contest the relevance of Combs’ statements. We thus proceed to the application of the evidentiaiy rules.
The State argues that Combs’ statements are admissible pursuant to K.S.A. 2003 Supp. 60-460, which provides in pertinent part:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of die matter stated, is hearsay evidence and inadmissible except:
“(i) Vicarious admissions. As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
Jackson raises two arguments regarding the admission of Combs’ statements. First, Jackson contends the conspiracy exception does not apply because Combs’ statements were made before Jackson entered into the conspiracy. Combs’ question about how to kill someone was a general question rather than a specific request for Jackson to join him in killing Williams. Second, Jackson argues that Clanton’s testimony lacked sufficient indicia of reliability.
Jackson’s argument that the conspiracy or coconspirator exception does not apply is not supported by the evidence. Clanton’s testimony supports the conclusion that Jackson was involved in the conspiracy during the telephone call with Combs. A conspiracy may be inferred from sufficiently significant circumstances. See State v. Swafford, 257 Kan. 1023, 1039-40, 897 P.2d 1027 (1995), modified on other grounds 257 Kan. 1099, 913 P.2d 196 (1996). Clanton testified that Jackson had a small bottle with a white substance and a syringe already prepared when they arrived at Jackson’s apartment a few hours after the phone call. According to Clanton, Jackson told Combs that all he had to do was to “stick her with [the syringe], just stick her with it and she will — once it gets in her system she will — eventually it will eventually eat up her system and she will pass out or she will die.” The preparation of the substance and the syringe and the reference to “she” in Jackson’s directions infer that Jackson was already part of the plan to kill Williams before Combs and Clanton arrived to pick him up. Jackson’s prior involvement can also be inferred by Combs’ assumption that Jackson was going with him and Clanton. According to Clanton, Combs asked Jackson, “[Y]ou’re not going with us?” Jackson responded, “I’m in for the night, you know, you all waited too late.” Jackson’s response indicates that he had planned to go with Combs and Clanton but changed his mind because it was late at night. If Combs’ question about how to kill someone had been generic, Jackson would not have prepared a syringe, referred to the victim as a “she,” or planned to go with Combs and Clanton until it became too late. The record supports the inference that Jackson was part of the conspiracy when Combs asked the question about how to kill someone. The conspiracy or coconspirator exception to the hearsay rule applies.
For his second argument, Jackson asserts that Clanton’s testimony lacks adequate indicia of reliability as required by the Con frontation Clause of the Sixth Amendment to the United States Constitution. In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the United States Supreme Court established a new analysis for Confrontation Clause claims, reevaluating the reliability analysis set forth in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). The first step in the Crawford analysis is to determine whether a statement is testimonial. Testimonial statements include, at a minimum, “prior testimony at a preliminary hearing, before a grand jury, or at a former trial . . . and to police interrogations.” 541 U.S. at 68. If the statement is testimonial, it may only be admitted if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. 541 U.S. at 59, 68. If the statement is not testimonial, the Crawford Court stated that it is wholly consistent with the Confrontation Clause to analyze the issue based on the applicable hearsay law. 541 U.S. at 68.
The Crawford Court specifically noted that statements by co-conspirators are not testimonial. 541 U.S. at 56. Therefore, the proper Confrontation Clause analysis requires us to apply Kansas hearsay law. In Swafford, this court considered whether a coconspirator’s statement bore sufficient indicia of reliability. The Swafford court concluded that the coconspirator exception to the hearsay rule found in 60-460(i)(2) is a firmly rooted hearsay exception that infers reliability without requiring further proof. 257 Kan. at 1039-40. The Crawford Court did not overturn the firmly rooted hearsay exception analysis for nontestimonial statements. See 541 U.S. at 68. Because of this, Swafford is controlling. Combs’ statement fits within the coconspirator exception to the hearsay rule. This is a firmly rooted exception. There is no need to establish further indicia of reliability. The trial court did not err by admitting Combs’ statement.
Tackson’s Confession
Jackson argues his confession was not voluntary because he was suffering from heroin withdrawal and could not resist the coercive interrogation tactics used by police.
An appellate court reviews tire district court’s decision regarding the suppression of a confession using a dual standard. The factual findings are reviewed using a substantial competent evidence standard. An appellate court will not reweigh the evidence but will give deference to the trial court’s factual findings. The ultimate legal conclusion drawn from the trial court’s factual findings is a question of law which is reviewed de novo. State v. White, 275 Kan. 580, 596-97, 67 P.3d 138 (2003). An appellate court accepts as true the evidence and all inferences drawn therefrom that support the trial court’s findings. State v. Speed, 265 Kan. 26, 36-37, 961 P.2d 13 (1998). To determine whether a confession is voluntaiy, a court must look at the totality of the circumstances in considering the following factors: the duration and manner of the interrogation; the ability of the accused to communicate on request with the outside world; the age, intellect, and background of the accused; and the fairness of the officers in conducting the investigation. The key inquiry is whether the statement is a product of the accused’s free and independent will. White, 275 Kan. at 597. Coercion in obtaining a confession can be mental or physical.
Duration and manner of the interrogation
Jackson’s interrogation began at approximately 9:30 a.m. A Kansas City, Missouri, police officer began by asking Jackson some biographical information and gave Jackson the Miranda warnings at about 9:45 a.m. At 11:28 a.m., Jackson accompanied officers to a different room to videotape his statement, which was completed at 12:13 p.m.
Jackson’s interrogation occurred at the Kansas City, Missouri, Police Department in its standard interview rooms. Jackson was not handcuffed during the interrogation. The officers interrogating Jackson gave him a cigarette and allowed him to use the bathroom during the interrogation. Jackson did not request any food or drinks.
An examination of the videotape shows the interview was conducted in a calm, orderly manner. The voices of the officers were not raised. The questions and tactics used were not intimidating. There is no support for the conclusion that the duration and manner of Jackson’s interrogation were coercive.
Jackson also argues that the court must find his confession involuntary because the police only recorded a portion of his interrogation. He fails to cite any case law requiring police to videotape every minute of an accused’s interrogation. We decline to make such a holding in this case. The testimony from Jackson and the officer who interrogated Jackson provided a sufficient record for evaluating the duration and manner of Jackson’s interrogation. None of this testimony supports the conclusion that the duration and manner of Jackson’s questioning coerced Jackson to confess.
Jacksons ability to communicate on request with the outside world
Jackson did not request to speak to an attorney or anyone else during his interrogation. The record does not support a finding that Jackson’s confession was coerced because he was denied contact with anyone outside the interrogation room.
Jacksons age, intellect, and background
Jackson was 42 years old at the time of his interrogation. He had four prior convictions, three for burglary and one for driving while intoxicated. Jackson argues his confession was coerced because he was suffering from heroin withdrawal during his interrogation. Jackson testified he had consumed a substantial quantity of heroin 5 days before his interrogation and that he suffered from withdrawal symptoms if he did not consume heroin every 2 days. According to Jackson, the symptoms of heroin withdrawal include cold chills, excessive sleep, and lack of appetite. Although Jackson testified he was tired, cold, and nervous during the interrogation, he repeatedly testified he “was not out of it” during his interrogation.
The police officer conducting Jackson’s interrogation testified Jackson did not appear to be under the influence of any drugs or alcohol and that Jackson’s responses were appropriate. Although Jackson’s hair was unkempt, there was no physical indication that he was suffering from heroin withdrawal. Jackson admitted he did not remember informing the police officers that he was suffering from heroin withdrawal.
The record does not support Jackson’s claim that his confession was involuntary because he was suffering from heroin withdrawal. The trial court’s decision to admit Jackson’s confession implies its finding that Jackson was not influenced by his withdrawal symptoms. This implied finding is supported by the evidence in the record and will not be overturned on appeal. See Hill v. Farm, Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998). There is no merit to this contention.
Fairness of the officers in conducting the investigation
Jackson argues that the officers pressured him into confessing and told him what to say. Jackson testified die officers “just kept pushing me, pushing me and forcing me to say — say it this way.”
Initially, Jackson denied any involvement in Williams’ death. However, after the officer conducting the investigation implied that Combs and Clanton had blamed Jackson for the murder, Jackson’s story changed. The officer told Jackson he did not believe it was Jackson’s idea to murder Williams and encouraged Jackson to further explain his involvement in Williams’ death. The officer admitted the detectives questioning Jackson suggested how the homicide occurred based on the physical evidence at the scene. Jackson testified the officers “were saying that all — all of it was coming on me. I was facing the murder rap by myself and in order for me to clear myself, that I — that I have to tell them the truth . . . .”
In State v. Kornstett, 62 Kan. 221, 61 Pac. 805 (1900), the police told the defendant that he would feel better if he told the truth. This court stated that “mere advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent.” 62 Kan. at 227. In State v. Harris, 279 Kan. 163, 171-72, 105 P.3d 1258 (2005), we upheld the admission of the defendant’s confession even though tire police told the defendant their theory of the homicide and suggested options for how the murder occurred. Jackson cannot distinguish the police interrogation techniques in this case from those used in Kornstett and Harris. Furthermore, Jackson has failed to cite any case law that forbids law enforcement officers from suggesting how the crime occurred based on other evidence within their knowledge. This factor does not weigh in favor of excluding Jackson’s confession.
When the totality of the circumstances is considered in light of the four White factors, there is no support for Jackson’s claim that his confession was coerced based on the failure to videotape all of his interrogation, the effects of his drug withdrawal symptoms, or the police officers’ suggestions regarding the manner of Williams’ death and their encouragement to tell the truth. The trial court did not err when it admitted Jackson’s confession into evidence.
CUMULATIVE ERRORS
Jackson argues he was denied a fair trial by cumulative errors. We look at the totality of the circumstances to determine whether cumulative errors have substantially prejudiced a defendant and denied his or her right to a fair trial. However, if the evidence is overwhelmingly against the defendant, no prejudicial error may be found on the cumulative effect rule. State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001). Applying this standard, we conclude that Jackson has failed to establish any error by the trial court. His claim of cumulative errors must fail.
SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Hanson, 277 Kan. 855, 856-57, 89 P.3d 544 (2004).
Jackson raises five arguments in support of his claim that there is insufficient evidence to support his convictions. First, he argues that Clanton’s testimony lacks credibility. The jury is responsible for weighing the evidence and passing on the credibility of witnesses. An appellate court does not invade the province of the jury by reweighing the evidence or determining the credibility of the witnesses. See State v. James, 276 Kan. 737, 753, 79 P.3d 169 (2003). This argument is without merit.
For his other four arguments, Jackson reiterates arguments previously raised in this appeal. He argues there is insufficient evidence to show his intent to murder Williams because he acted from compulsion and withdrew before she was murdered. Jackson asserts there is no evidence he entered Kansas or participated in the final act that ended Williams’ life. Jackson claims there is insufficient evidence to convict him of kidnapping Williams because he did not help put her in the back of the U-Haul truck and it was not reasonably foreseeable that Combs and Clanton would drive to Kansas with Williams. Each of these arguments have been previously resolved against Jackson. There is no merit to his claim that his convictions are supported by insufficient evidence.
We find no trial errors. We affirm Jackson’s convictions for first-degree premeditated murder, kidnapping, and conspiracy to commit murder. With these conclusions reached, we proceed to the sentencing issues.
HARD 50 SENTENCING SCHEME
Jackson argues that the hard 50 sentencing scheme, K.S.A. 21-4635 et seq., is unconstitutional because it increases the sentencing range by adding 25 years to the defendant’s parole ineligibility. The constitutionality of a statute is a question of law over which this court has unlimited review. State v. Beard, 274 Kan. 181, 185, 49 P.3d 492 (2002).
Jackson’s argument has been previously considered and rejected by this court. See, e.g., State v. Hebert, 277 Kan. 61, Syl. ¶ 14, 82 P.3d 470 (2004); State v. Washington, 275 Kan. 644, 680, 68 P.3d 134 (2003); State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003); State v. Douglas, 274 Kan. 96, 111, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003); State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001) (upholding the hard 40 sentencing statute).
Jackson asks this court to overturn Conley and its progeny but fails to cite any additional authority to support the reversal of this court’s position. An issue raised but unsupported by any argument or authority has no persuasive effect. Conley and its progeny are controlling. The hard 50 sentencing provisions are constitutional.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT A HARD 50 SENTENCE
Jackson claims there is insufficient evidence to support the imposition of the hard 50 sentence against him. He raises three arguments to support this claim. First, Jackson argues the trial court relied on acts committed by his codefendants rather than himself and that such reliance violates K.S.A. 2003 Supp. 21-4636(f). Second, Jackson argues his conduct was not especially heinous, atrocious, or cruel. Third, Jackson argues the court relied on inherently unreliable evidence to support its finding that the murder was committed for the purpose of receiving money or any other thing of monetary value.
To address Jackson’s first argument, we interpret K.S.A. 2003 Supp. 21-4636(f). The interpretation of a statute is a question of law over which this court has unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 2003 Supp. 21-4636 provides in pertinent part:
“Aggravating circumstances shall be limited to the following:
“(f) The defendant committed the crime in an especially heinous, atrocious or cruel manner. A finding that the victim was aware of such victim’s fate or had conscious pain and suffering as a result of the physical trauma that resulted in the victim’s death is not necessary to find that the manner in which the defendant killed the victim was especially heinous, atrocious or cruel. In making a determination that the crime was committed in an especially heinous, atrocious or cruel manner, any of the following conduct by the defendant may be considered sufficient:
(3) infliction of mental anguish or physical abuse before the victim’s death;
(5) continuous acts of violence begun before or continuing after the killing.”
Jackson admits Williams’ murder was especially heinous, atrocious, or cruel but claims that all of the especially heinous, atrocious, or cruel actions were committed by his codefendants rather than himself. He argues that K.S.A. 2003 Supp. 21-4636(f) requires the especially heinous, atrocious, or cruel actions be committed by him rather than his codefendants for the aggravating factor to apply. This argument overlooks the evidence in the record.
Clanton testified that Jackson planned to inject Williams with a poison that would “eat up her system.” Jackson hit Williams in the head with a mallet so he could inject her with the poison. When Williams screamed, Jackson jumped on top of her and tried to strangle her. Williams struggled with Jackson, and the two fell on the floor. Jackson then fought with Williams for several minutes on the floor, leaving Williams’ blood splattered across her bed, her floor, her walls, and other articles in her room. After quieting Williams, Jackson sat on top of her and told Combs to get the syringe with the poison. When Jackson broke the syringe, he and Combs started looking for an extension cord to use to strangle Williams. Combs found an extension cord and handed it to Jackson, but Jackson broke the extension cord before he could strangle Williams to death. At that point, Combs suggested that Jackson stab Williams. Jackson told Combs to stab her himself because he was tired.
All of Jackson’s actions in beating, strangling, and fighting with Williams prior to her death inflicted mental anguish or physical abuse and constituted continuous acts of violence begun before the victim’s death as articulated by K.S.A. 2003 Supp. 21-4636(f)(3) and (5). Jackson’s argument that the trial court improperly applied the statute to him based on the actions of his codefendants is without merit.
Likewise, Jackson’s argument that his actions were not especially heinous, atrocious, or cruel is without merit. When reviewing a challenge to the sufficiency of the evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the court must determine “ whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.’ [Citations omitted.]” Boldridge, 274 Kan. at 808.
Jackson argues that he tried to help Williams. The only evidence that Jackson attempted to help Williams came from his own statement. Jackson said that he told Williams to play like she was dead and that he would call the ambulance. However, Jackson never called an ambulance or alerted police.
In reviewing the evidence as required by Boldridge, Clanton’s testimony supports the finding that Jackson’s actions inflicted both mental anguish and physical abuse constituting continuous acts of violence against Williams. Jackson was directly responsible for leaving her in a condition that made it easier for Combs and Clanton to run over her with the U-Haul. Jackson’s actions clearly fall within the definition of especially heinous, atrocious, or cruel found in K.S.A. 2003 Supp. 21-4636(f)(3) and (5).
Jackson’s argument that the trial court relied on inherently unreliable evidence for its finding that the murder was committed for the purpose of receiving money or any other thing of monetary value also fails. This is another attempt to discredit Clanton’s testimony. However, the jury’s verdict demonstrates it found Clanton to be a credible witness. We do not reweigh the evidence or pass on the credibility of witnesses. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000).
Jackson’s argument also overlooks the standard of review set forth previously. Clanton testified that Jackson helped load Williams’ property into the U-Haul and took a small television with him when he returned to his apartment. This evidence supports the trial court’s finding that Jackson committed the crime for the purpose of receiving money or other things of monetary value.
The trial court’s findings regarding the aggravating circumstances are supported by the record. Jackson does not argue that the district court improperly weighed these factors against the mitigating factors. K.S.A. 2003 Supp. 21-4635(c) requires the district court to impose a hard 50 sentence if it concludes that the aggravated circumstances outweigh any mitigating circumstances. The trial court did not err when it sentenced Jackson to a hard 50 life sentence.
We have considered all of the arguments and find no error. The convictions and sentences are affirmed.
Gernon, J., not participating.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Beier, J.:
This K.S.A. 2004 Supp. 60-1507 case requires us to determine the applicability of our holding in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), in a situation where a criminal defendant’s lawyer failed to raise a McAdam-type argument on direct appeal to the Court of Appeals and thus failed to preserve it for this court to address on petition for review.
Factual and Procedural Background
Movant Aaron Laymon pleaded guilty to one count of conspiracy to manufacture methamphetamine in violation of K.S.A. 65-4159 and K.S.A. 21-3302. A violation of K.S.A. 65-4159 is a drug severity level 1 felony. He was sentenced to 132 months in prison.
Laymon appealed his sentence to the Kansas Court of Appeals; his counsel from the Appellate Defender’s office (ADO) filed Laymon’s direct appeal brief on May 7, 2003. At least two lines of argument were available to Laymon’s counsel at that point in time.
One line of argument was pursued in State v. Luttig, 30 Kan. App. 2d 1125, 54 P.3d 974, rev. denied 275 Kan. 967 (2002), and in State v. Layton, 31 Kan. App. 2d 350, 65 P.3d 551 (2003), aff'd. 276 Kan. 777, 80 P.3d 65 (2003). ADO lawyers had argued in each case that a defendant sentenced for manufacturing methamphetamine under the drug severity level 1 felony provision of K.S.A. 65-4159 was entitled to be sentenced instead under the misdemeanor provision in K.S.A. 65-4127c. The Court of Appeals ruled against the defense position in both cases — in Luttig on October 4, 2002, and in Layton on March 28, 2003 — adopting the rationale that K.S.A. 61-4159 contained a specific penalty provision, which controlled over the general penalty provision of K.S.A. 65-4127c. See Luttig, 30 Kan. App. 2d at 1130-32; Layton, 31 Kan. App. 2d at 356.
The other line of argument had been pursued by an ADO lawyer in McAdam. In that case, the ADO lawyer argued on behalf of a defendant sentenced for manufacturing under the drug severity level 1 felony provision in K.S.A. 61-4159 that he should have been sentenced instead under the drug severity level 3 felony provision of K.S.A. 65-4161. The Court of Appeals rejected this argument as well. See State v. McAdam, 31 Kan. App. 2d 436, 66 P.3d 252 (2003), aff'd. in part, rev'd. in part 277 Kan. 136, 83 P.3d 161 (2004).
When Laymon’s ADO lawyer filed his direct appeal brief, this court had denied a petition for review in Luttig; however, a petition for review in Layton was awaiting decision by this court; and the time for filing such a petition in McAdam had not yet expired. In short, despite the icy reception that had been given both lines of argument by the Court of Appeals, this court had not yet finally rejected either.
Nevertheless, the sole line of argument pursued vigorously on Laymon’s direct appeal was the Luttig/Layton argument. It was captioned: “The district court erred by imposing a felony penalty for the manufacturing of methamphetamine,” and the brief asserted: “Because there are two separate penalty provisions applicable to a violation of K.S.A. 65-4159, a defendant can only be sentenced to the lesser — in this case, a misdemeanor sentence pursuant to K.S.A. 65-4127c. Because the felony sentence imposed in this case violates [State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989)], it must be set aside and the matter remanded for imposition of a misdemeanor sentence for conspiracy to manufacture methamphetamine.”
As for the McAdam line of argument — that Laymon should have been sentenced for compounding under the drug severity level 3 felony provision covering K.S.A. 65-4161 rather than for manufacturing under the drug severity level 1 felony provision covering K.S.A. 65-4159 — the brief s only mention of it came in its last few substantive sentences, with no elaboration or explanation. It appears as meek handmaiden to the brief s central argument regarding misdemeanor sentencing under 65-4127c; it bears no separate heading or other emphasis, merely bringing up the rear of the brief s critique of a Court of Appeals version of Layton that was later modified:
“Far from clarifying the controversy, [the Court of Appeals] actually compounds the difficulty of determining how to classify the offense of manufacturing meth amphetamine. K.S.A. 65-4159 and K.S.A. 65-4161 describe similar offenses, but propose different penalties. K.S.A. 65-4159, notwithstanding the provisions of K.S.A. 65-4127c, purports to define a severity level 1 drug felony. K.S.A. 65-4161 is a severity level 3 drug felony for first time offenders.
“The question then becomes which of these two is the applicable statute. If K.S.A. 65-4159 is, then the conflict -with K.S.A. 65-4127c remains. Mr. Laymon should be sentenced for the class C misdemeanor of conspiring to commit a misdemeanor. If K.S.A. 65-4161 is, then Mr. Layton, who has no prior drug convictions, should be sentenced for the severity level 3 drug felony.”
This court granted petitions for review in Layton and McAdam on July 9, 2003. The Court of Appeals heard argument in Laymon’s direct appeal on August 27, 2003, which was before this court heard argument in either Layton or McAdam. Given the fact that Layton and McAdam had been accepted for review, Laymon’s ADO lawyer would or should have been aware that this court would be addressing both of the lines of argument that had been available to his client on direct appeal of his sentence. Because there is no stenographic or audio record kept of Court of Appeals arguments, however, we are not able to reconstruct whether the lawyer attempted to breathe life into his briefs fleeting allusion to a Mc-Adam-type claim.
Not surprisingly, the Court of Appeals’ decision in Laymon’s case did not come down until after our decision in Layton was filed on December 12, 2003; this was 2 days after McAdam was argued before this court. In Layton, we rejected the argument that the defendant should have been sentenced under the misdemeanor provision of 65-4127c, accepting the Court of Appeals’ reasoning that 65-4159 was not part of the Uniform Controlled Substances Act. State v. Layton, 276 Kan. 777, 782, 80 P.3d 65 (2003). It is also significant for this case that we commented in the Layton opinion on a belated defense attempt to pursue a McAdam-type argument:
“At oral argument before this court, in response to questions from the bench, counsel for appellant insisted that the issue of whether Layton should have been sentenced under K.S.A. 65-4161 was before this court. Counsel subsequently filed an additional authority letter . . . stating that if Layton is not subject to be sentenced for a misdemeanor under K.S.A. 65-4127c, he should be sentenced for a severity level 3 felony for violation of K.S.A. 65-4161. He argues the issue was before the Court of Appeals based on Layton’s motion to rehear or modify the Court of Appeals’ opinion and the court’s subsequent modification of its opinion. Counsel for appellant admits the Court of Appeals did not directly address that issue but argues that does not preclude this court from addressing whether ‘Layton should have been sentenced under K.S.A. 65-4161.’
“We disagree.
“The issue that Layton has pursued to this court was stated in his brief in the Court of Appeals as whether the district court erred by imposing a felony penalty for the manufacturing of methamphetamine, and his argument was that there was a conflict between the misdemeanor penalty of 65-4127c and the felony penalty of 65-4159. Layton did not cite K.S.A. 65-4161 in his appellate brief in the Court of Appeals. . . . Contraiy to Layton’s assertion, the Court of Appeals did not find that he was ‘properly sentenced to a [severity] level 1 penalty under K.S.A. 65-4161 because Layton had two prior convictions for similar offenses.’
“The Court of Appeals issued its first opinion in this case in December 2002. . . . [After a successful motion for reconsideration, in a] modified opinion, the Court of Appeals stated with regard to 65-4161: ‘The fact that compounding a narcotic under K.S.A. 2001 Supp. 65-4161, a similar offense, is a felony under both that statute and K.S.A. 2001 Supp. 65-4127c simply reinforces our conclusion that a violation of 65-4159 was intended to be a felony.’ [Citation omitted.]
“In his petition for review of the modified Court of Appeals’ opinion, Layton phrased his issue as follows: ‘The Court of Appeals erred by not remanding this case for the imposition of a misdemeanor penalty for the manufacturing of methamphetamine; in the alternative, the Court [of Appeals] erred in not remanding this case for re-sentencing ... for a severity level 3 felony. . . .’With regard to the ‘alternative’ issue, Layton quoted the Court of Appeals’ reference to 65-4161 being a similar offense to 65-4159. Layton argued that if the two statutes prohibit identical conduct but impose different penalties — 65-4161 is a severity level 3 felony for a first conviction and 65-4159 is a severity level 1 felony — he can be sentenced only under the lesser penalty. The State did not file a response to Layton’s petition for review. Neither party filed a supplemental brief in this court.
“Rule 8.03(g)(1) (2003 Kan. Ct. R. Annot. 60) provides in part: ‘The order granting review may limit the questions on review. If review is not limited, the issues before the Supreme Court include all issues properly before the Court of Appeals that the petition for review or cross-petition allege were decided erroneously by the Court of Appeals.’ Here, the order granting review limited the question on review to Layton’s sentence for violation of K.S.A. 65-4159. Although Layton stated as an ‘alternative’ issue in his petition for review that he should have been sentenced under 65-4161 rather than 65-4159, that issue was neither presented to the Court of Appeals nor decided by it. There is no Court of Appeals decision on this issue for the court to review in this case.” Layton, 276 Kan. at 782-84.
The Court of Appeals’ two-page decision in Laymon’s direct appeal, filed January 9, 2004, quickly dispensed with the argument that Laymon should have been sentenced under the misdemeanor provision of 65-4127c, rejecting it on the specific-versus-general ground of Luttig and on the ground that K.S.A. 65-4159 was not part of the Uniform Controlled Substances Act to which K.S.A. 65-4127c was intended to apply. See State v. Laymon, No. 89,792, unpublished opinion filed January 9, 2004. Layton is not cited, although this court’s decision had already come down and would have supported the panel’s result. The opinion did not address a McAdam-type argument at all.
This court’s decision in McAdam was filed January 30, 2004. It reversed the Court of Appeals, holding that K.S.A. 65-4159 and K.S.A. 65-4161 could be identical offenses and that a defendant convicted for methamphetamine manufacture under 65-4159 and sentenced for a drug severity level 1 felony must instead be sentenced for a drug severity level 3 felony under 65-4161. McAdam, 277 Kan. at 145.
When Laymon’s ADO lawyer filed his client’s petition for review 5 days later, the Luttig/Layton fine of argument had disappeared and the McAdam line of argument had become the focus. Only one issue was advanced for review: “The Court of Appeals erred by affirming an illegal sentence for conspiracy to manufacture methamphetamine because manufacture of methamphetamine is a severity level 3 drug felony under K.S.A. 65-4161(a), not a severity level 1 drug felony under K.S.A. 65-4159(a).”
This court directed the State to respond. The State’s brief favored granting the petition for review, arguing only that McAdam was wrongly decided and that a hearing was necessary. The State failed to address whether Laymon’s claim was properly before this court.
This court denied Laymon’s petition for review on June 25,2004.
This K.S.A. 2004 Supp. 60-1507 motion followed. Laymon argued that he was entitled to resentencing pursuant to McAdam because his direct appeal was not yet final when McAdam was decided and that this court’s later denial of his petition for review had not constituted a decision on the merits of his McAdam issue. In the alternative, Laymon asserted that the ADO lawyer who handled his direct appeal was ineffective for failing to “adequately present and preserve the McAdam issue.” Laymon also appeared to contend in the alternative that his direct appeal brief s momentaiy reference to a McAdam-type argument was adequate to preserve the issue before the Court of Appeals.
The district judge denied Laymon’s 60-1507 motion without appointment of counsel or any type of hearing. In his journal entry, the judge stated: (1) The Court of Appeals’ decision in State v. McCoin, 32 Kan. App. 2d 638; 87 P.3d 325 (2004), was controlling and would prevent application of the McAdam rule on collateral attack; (2) Laymon had not appealed his sentence and could not have done so; and (3) given this court’s order that the State address the McAdam issue while Laymon’s petition for review of the direct appeal decision was pending, and its later denial of that petition, the merits of Laymon’s McAdam claim were considered and rejected by this court, rendering his related ineffective assistance of counsel claim moot.
Standard of Review
When presented with a K.S.A. 60-1507 motion, a district court has three options:
“ ‘First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner’s motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial.’ ” Gaudina v. State, 278 Kan. 103, 107-08, 92 P.3d 574 (2004) (quoting Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 [2000]).
The district judge elected to summarily deny Laymon’s motion without reaching the merits of the ineffective assistance of direct appeal counsel claim. We have often stated that we review such a summary disposition under an abuse of discretion standard. See, e.g., Estes v. State, 221 Kan. 412, 414, 559 P.2d 392 (1977); see also Gilkey v. State, 31 Kan. App. 2d 77, 78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003). And Supreme Court Rule 183(h) (2004 Kan. Ct. R. Annot. 221) states that the “sentencing court” has discretion to ascertain whether a 60-1507 claim “is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.”
However, to the extent a decision is based only upon the “motion, files, and record” of a case, an appellate court is as equipped as a district court to decide the issues efficiently and reliably, and both this court and the Court of Appeals routinely engage in de novo review of summary denials of 60-1507 motions while giving lip service to the abuse of discretion standard. See, e.g., Jackson v. State, No. 90,152, unpublished Court of Appeals opinion filed April 23, 2004 (Johnson, J., concurring).
If, on the other hand, substantial questions of fact remain to be settled on a 60-1507 motion, a district court evidentiary hearing is necessary, and remand is required. This is particularly true when evidence on such facts can best be evaluated by the judge who presided at trial, and that judge will be assigned the 60-1507 motion.
Should we decide, unlike the district judge, that the merits of Laymon's claim that his ADO lawyer provided ineffective assistance of counsel on direct appeal must be reached,
“it must be shown that (1) counsels performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced to the extent that there is a reasonable probability that, but for counsels deficient performance, the appeal would have been successful.” Baker v. State, 243 Kan. 1, 7, 755 P.2d-493 (1988).
This standard incorporates the
“caveats and direction articulated in [Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984),] and Chamberlain [v. State, 236 Kan. 650, 694 P.2d 468 (1985)] . . . :
‘A court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. . . . [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the ex ercise of reasonable professional judgment.’ ” 243 Kan. at 7-8 (quoting Strickland, 466 U.S. at 690).
Finally, it is important to note that the mere existence of an ineffective assistance of appellate counsel claim does not malee remand inevitable. We have previously decided such an issue on appeal when we found adequate information in the record to take that step. See e.g., State v. Jones, 273 Kan. 756, Syl. ¶ 3, 47 P.3d 783, cert. denied 537 U.S. 980 (2002); State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000) (remand for hearing serves no purpose when record adequate to decide ineffective assistance issue). If remand is necessary because substantial issues of fact remain, Judge Keeley will wrestle with the ineffective assistance of appellate counsel analysis set forth above. If not, we will do the wrestling. The performance and prejudice prongs of ineffective assistance of counsel analysis are mixed questions of law and fact. Easterwood v. State, 273 Kan. 361, 370, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002).
Analysis
Laymon’s brief enumerates several issues, but all of them boil down to one: Whether he is entitled to claim the sentencing benefit of our ruling in State v. McAdam.
There is no question that Laymon’s direct appeal of his sentence was not final at the time we decided McAdam. And our precedent is clear that a criminal defendant whose direct appeal on a McAdam-type issue was still pending at that time is entitled to re-sentencing. See State v. Barnes, 278 Kan. 121, 122-28, 92 P.3d 578 (2004). On the other hand, our precedent is equally clear that invocation of McAdam will be unsuccessful if no direct appeal was taken and the invocation occurs for the first time on a collateral attack under 60-1507. See Bryant v. State, 280 Kan. 2, Syl. ¶ 3, 118 P.3d 685 (2005).
The facts and procedural history of this case fall somewhere between the Barnes and Bryant extremes — Laymon took a direct appeal from his sentence, but his ADO lawyer failed to preserve the McAdam line of argument, eliminating Laymon’s chance of success via McAdam on direct appeal to the Court of Appeals or on petition for review to this court. This left Laymon with no avenue to jurisdiction other than K.S.A. 2004 Supp. 60-1507. See State v. McCoin, 278 Kan. 465, 467-68, 101 P.3d 1204 (2004) (no jurisdiction over untimely motion for arrest of judgment based on McAdam; sentence in violation of McAdam not illegal, thus not candidate for modification under K.S.A. 22-3504; K.S.A. 2004 Supp. 60-1507 only possible jurisdictional vehicle for McAdam claim after direct appeal terminates); see also Bryant, 280 Kan. 2, Syl. ¶ 3 (McAdam claim cannot be successful if raised for first time by 60-1507 motion without tandem allegation of ineffective assistance of direct appeal counsel).
In addition, two preliminary matters demand attention.
First, the district judge stated erroneously that Laymon could not have appealed his sentence and, in fact, did not do so. A defendant may appeal his or her sentence if he or she is challenging the offense severity level assigned, K.S.A. 21-4721(e)(3), and Laymon did so.
Second, the district judge also was incorrect in overinterpreting our decision to deny Laymon’s petition for review. Supreme Court Rule 8.03(f) (2004 Kan. Ct. R. Annot. 58) reads: “The denial of a petition for review of a Court of Appeals’ decision imports no opinion on the merits of the case.” Our denial of Laymon’s one-issue petition was attributable to the absence of a Court of Appeals ruling on his late-blooming McAdam claim, not to a judgment on its merits. This denial was consistent with our refusal to address the McAdam issue raised too late in Layton. See Layton, 276 Kan. at 784 (“Although Layton stated as an ‘alternative’ issue in his petition for review that he should have been sentenced under 65-4161 rather than 65-4159, that issue was neither presented to the Court of Appeals nor decided by it. There is no Court of Appeals decision on this issue for the court to review in this case.”).
A criminal defendant is entitled under due process to effective assistance of counsel on first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-98, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985). Although the failure of direct appeal counsel to raise a particular issue on appeal “is not, per se, to be equated with ineffective assistance of counsel,” Baker, 243 Kan. at 9, a lawyer’s failure to foresee a change in the law may lead to 60-1507 relief if the failure was not objectively reasonable. See Starnes v. State, No. 88,225, unpublished Court of Appeals opinion filed November 21, 2003 (Sixth Amendment requires competence, not omniscience; appellate counsel’s arguments conformed to law of Kansas at time arguments made); see also Baker v. State, 20 Kan. App. 2d 807, 810-11, 894 P.2d 221, rev. denied 257 Kan. 1091 (1995) (discounting ineffective assistance claim against lawyer who represented movant at time of plea; favorable change in law did not occur until years later). We have further stated:
“In an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those which could result in nothing more than harmless error, should not be included as issues on appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them. Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.” Baker, 243 Kan. at 10.
In this case, Laymon asserts that the McAdam line of argument was “obviously” stronger than the misdemeanor/felony argument that was raised in his direct appeal. He is particularly critical of his ADO lawyer’s performance because colleagues of the lawyer at the ADO were acting as counsel in McAdarn at the same time his direct appeal was pending. Thus, he argues, his lawyer certainly should have been aware of the McAdarn issue’s potential potency.
The State counters that Laymon’s ADO lawyer cannot be expected to have been a “soothsayer.” In addition, in the State’s view, the lawyer may have been trying to avoid a “shotgun” approach to briefing that this court had earlier criticized as ineffective. See Baker, 243 Kan. at 10.
This is a dispute amenable to settlement by this court without remand. The only fact we do not know conclusively is whether Laymon’s ADO lawyer was employing a conscious strategy in failing to pursue the McAdam fine of argument at all, as the State has suggested he might have been doing to avoid a “shotgun” brief. Under the circumstances of this case, it is certain avoidance of a “shotgun” approach was not a factor. Laymon’s entire appeal brief was only five pages long. It raised only the misdemeanor/felony issue. Frustration of the appellate court with numerous nonmeritoiious issues was not a serious danger, and we discern no other plausible strategy in the approach of Laymon’s ADO lawyer on direct appeal.
Our evaluation of the merits of Laymon’s ineffective assistance of counsel claim is informed by two recent Court of Appeals cases.
In one, Shotts v. State, No. 92,745, unpublished opinion filed May 27, 2005, a Court of Appeals panel addressed the failure of plea counsel to file any appeal of a client’s sentence, thus necessarily fading to raise McAdam. In Shotts, the 60-1507 movant argued that his plea counsel was ineffective in failing to object to his crime severity level at his October 4,2002, sentencing and in fading to pursue a McAdam-type argument on direct appeal. Had counsel raised a McAdam-type issue on direct appeal, it appears the appeal would stdl have been pending when McAdam was decided by this court, and Barnes would have mandated relief despite the earlier guilty plea. Relying on an earlier Court of Appeals decision in Baker v. State, 20 Kan. App. 2d 807, which rejected a 60-1507 claim of ineffective assistance against plea counsel for failing to anticipate a favorable change in the law several years later, the Shotts panel stated:
“Baker instructs that the standard of reasonableness of a counsel’s actions is judged under the law applicable at the time. . . .
“The holding of Baker strongly indicates that the movant’s counsel could not be deemed ineffective for failing to challenge the movant’s crime severity level, especially when such a challenge could very well have jeopardized the plea agreement with the State. The same reasoning applies to movant’s argument that counsel was ineffective for failing to file a notice of appeal. Movant has not demonstrated that a rational defendant, when considering the state of the law at the time, would have wished to appeal the classification of Shotts’ crime of conviction, especially when considering the benefit Shotts received as a result of the plea agreement. The movant is not entitled to relief on his claim that counsel was ineffective for failing to file a direct appeal.”
Shotts and Baker are not persuasive authority here for several reasons.
First, Shotts leaned heavily on the fact that the K.S.A. 60-1507 movant involved had taken advantage of a favorable plea agreement. As long as there is a direct appeal of a sentence, Barnes has made that fact irrelevant in the McAdam context. In addition, we ruled on June 10, 2005, that the mere successful appeal of a sentence under McAdam after a favorable plea agreement does not permit the State to withdraw from the agreement unilaterally when the case is remanded. State v. Boley, 279 Kan. 989, 998-1002, 113 P.3d 248 (2005). Thus a defendant who chooses not to bring a McAdam claim on direct appeal from his or her sentence after a favorable plea agreement cannot be characterized as more “rational” Than one who does.
Second, Laymon’s ineffective assistance claim focuses on direct appeal counsel rather than plea counsel. It maybe more reasonable generally to expect appellate counsel to be aware of issues that may bear fruit on appeal than it is to have the same expectation of plea counsel; but, even if it is not, it is certainly more reasonable in the specific case before us here. Laymon’s direct appeal counsel was a fellow lawyer to those in the ADO who were simultaneously representing the defendant in McAdam, i.e., the client whose case would soon set the favorable precedent Laymon seeks to have applied to his case. In these circumstances, Laymon is correct that we should charge his direct appeal counsel with knowledge that the McAdam issue was worthy of preservation and pursuit. Although McAdam was not yet the law of Kansas, the line of argument was in no worse position than the misdemeanor/felony line of argument under Luttig and Layton that counsel did pursue. In fact, the McAdam line of argument, though by no means “obviously” better, could be viewed as somewhat more promising because, at the time Laymon’s brief was filed in his direct appeal, an analogous line of cases under State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), was developing; and the McAdam line of argument had been rejected by only one Court of Appeals panel rather than the two that had already rejected the misdemeanor/felony line of argument.
The second Court of Appeals case deals with an ineffectiveness argument dependent in part on appellate counsel’s status as a lawyer in the ADO who might have specific knowledge.
In that case, Jackson v. State, No. 90,152, unpublished opinion filed April 23, 2004, movant Marlon D. Jackson brought a 60-1507 challenge based on his conviction for felony murder in the death of a cofelon killed by the intended victim of a robbery. Jackson s direct appeal, which did not take issue with the propriety of a felony-murder conviction in such circumstances, was decided the same day as State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001). In Murphy, this court held that a victim’s lawful killing of a cofelon could not be the basis of a felony-murder conviction. Murphy, 270 Kan. at 809. Based on the Murphy holding, Jackson’s counsel moved for rehearing of his direct appeal by this court, which was denied; and Jackson’s 60-1507 filing followed.
The district court ruled against Jackson after a nonevidentiary hearing. On its way to affirming that ruling, the Court of Appeals panel stated:
“Next, Jackson argues that his appellate counsel was ineffective. Jackson states that the [decision] in Murphy . . . indicated] the idea that felony murder should not apply in his situation was not new or novel. Jackson argues that because his appellate counsel was from the Appellate Defender’s office, the same office that handled Murphy’s appeal, the issue of the application of felony murder to his situation should have been raised.
“Our Supreme Court’s [decision] in Murphy . . . and Jackson’s direct appeal were [both] issued on March 9, 2001. On March 12, 2001, Jackson’s appellate counsel moved for rehearing. In the motion, counsel argued that the reasoning of Murphy . . . should be applied to Jackson’s case. As soon as it was apparent that the law of the state had been adjusted, Jackson’s appellate counsel sought to have the adjustment applied to his clients’s appeal. Until the issuance of . . . Murphy, there was no indication that the law had changed and no reason for Jackson’s appellate counsel to believe that arguing [against] the application of felony murder to his situation was anything but a futile exercise on an issue that had not been preserved below. As with Jackson’s trial counsel, his appellate counsel was not ineffective for failing to anticipate changes in the law.”
This court denied review of the Court of Appeals’ decision in Jackson. As noted above, this court’s denial of a petition for review does not necessarily reflect on the merits of the case in which the petition was filed. This is not necessarily true of a denial of a motion for rehearing, however. This court’s refusal to rehear Jackson’s direct appeal after Murphy was decided may have meant that we regarded Murphy as inapplicable to his case.
In addition, Jackson is not persuasive here because Jackson’s lawyer raised several other issues in his direct appeal; thus the addition of another previously unsuccessful issue could have posed the “shotgun” danger the State has invoked here. In contrast to Laymon’s lawyer, it is logical and possible that Jackson’s lawyer followed a conscious strategy by omitting the argument at issue. In addition, the failure to preserve the Murphy-type argument at Jackson’s trial — a failure that could not have been attributable to the ADO lawyer — posed a significant procedural.obstacle to direct appeal on that issue. Laymon’s McAdam-type sentencing issue was not subject to the same procedural obstacle. Finally, in Jackson there is no indication that any analogous cases were winding their way through the appellate courts with some significant success, as was true of the Frazier line here.
In this case, we hold that the performance of Laymon’s ADO lawyer on direct appeal was objectively unreasonable. Although McAdam had not yet been decided by this court when Laymon’s direct appeal brief was filed and his oral argument heard, the state of the developing Kansas law counseled in favor of preserving the line of argument; and his lawyer, particularly given his colleagues’ involvement in McAdam, can be charged with knowledge of the exact status of that law at the time. Laymon meets the first prong of the ineffective assistance of counsel test.
Had Laymon’s ADO lawyer adequately pursued the McAdam line of argument on direct appeal, either his Court of Appeals panel could have rejected it, meaning we would have taken the issue up on petition for review to ensure a remand for resentencing on a drug severity level 3 basis; or the panel would have accepted it and remanded for resentencing without this court’s intervention. Either would have meant Laymon received the relief he seeks byway of the motion underlying this appeal. Thus Laymon also meets the second prong of the ineffective assistance of counsel test: His ADO lawyer’s unsatisfactory performance prejudiced him. Laymon’s sentence must be vacated and his case must be remanded for re-sentencing under McAdam.
Reversed, sentence vacated, and case remanded for resentencing under McAdam.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Nuss, J.:
In 2004, 12 years after Steve L. Moses pled guilty to first-degree murder and aggravated robbery, he filed a motion to withdraw his guilty pleas. He alleged that the district court violated K.S.A. 22-3210 (Ensley 1988) when it failed to personally advise him, and establish he understood, that by entering guilty pleas, he would be waiving certain constitutional rights. After the district court denied the motion, Moses appealed. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (life sentence imposed).
The sole issue on appeal is whether the district court abused its discretion when it denied Moses’ motion to withdraw his guilty pleas. We affirm.
FACTS
The principal facts are not in dispute. In 1992, Moses was charged with first-degree murder and aggravated robbeiy for the strangulation death of his 81-year-old next door neighbor, Radar Potter. Following a preliminary hearing, Moses was bound over for trial. After the State filed notice of intent to seek the Hard 40 sentence, Moses agreed to plead guilty as charged in exchange for the State dropping its Hard 40 request.
At the November 18,1992, plea hearing, the trial court read the information aloud to Moses and then asked him to tell tire court what he had done. Moses explained that while he was high on drugs, he went next door to Potter’s house to use her phone. When the person he was trying to call did not answer the phone he got mad, grabbed Potter, and strangled her for about 30 minutes until she finally quit breathing. He then took a radio from her house and drove off in her car.
The court asked the State to provide an additional factual basis. The State replied that Moses’ common-law wife testified at the preliminary hearing that he admitted to her that he had killed the old lady next door. It also informed the court that another witness — the sister of his common-law wife — testified that she had heard Moses make statements that he saw the old lady next door with some money and he ought to hit her in the head and get her money. The State further said that blood was found on the shoes Moses was wearing at the time, and the victim had bled from her nose. The State additionally told the court that in Moses’ statement to police, he said he had done something bad. The State also proffered that the autopsy showed Ms. Potter’s death was due to strangulation.
When the court asked Moses if he disputed that the State would present that evidence, he replied, “[I]f I did go to court with it I probably would lose it. I would lose the case.”
There was then a lengthy discussion about whether Moses understood the penalty he faced in the event the court accepted his guilty pleas.
The court then noted that a petition to enter a plea of guilty had been signed by Moses, his legal counsel, and the prosecutor. Paragraphs 7 and 8 of the petition contain the following acknowledgments:
“7. I know that I have the right to plead ‘Not Guilty’ to any offense charged against me. If I plead ‘Not Guilty,’ I know the Constitution guarantees me:
“A. The right to a speedy and public trial by a jury.
“B. At that trial, and at all stages of the proceedings, the right to the assistance of a lawyer.
“C. The right to see and hear all witnesses called to testify against me, and the right to cross-examine those witnesses.
“D. The right to use the power and process of the court to compel the production of any evidence, including the attendance of any witnesses in my favor.
“E. The right not to be compelled to incriminate myself by not taking the witness stand, and if I do not take the witness stand, no inference of guilt may be drawn from such failure.
“F. If I am convicted, I have the right to appeal to the Supreme Court of Kansas and that if I do not have the funds, the court will appoint an attorney for me and pay the costs of such appeal.
“8.1 know that if I plead ‘Guilty’ I am thereby waiving all of the above rights and that there will be no further trial of any kind, either before the court or jury; and further, I realize the court may impose the same punishment as if I had pleaded ‘Not Guilty,’ stood trial, and been convicted by a jury.” (Emphasis added.)
Before the court accepted Moses’ plea, the following colloquy occurred between the court and Moses:
“THE COURT: I think the record should reflect the petition to enter a plea of guilty has been signed by the defendant, defense counsel and also the district attorney. Mr. Moses, did you have a chance to go over this with Mr. Duma [defense counsel] before you signed it?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is there anything in this document now that you don’t understand or that you got a question on?
“THE DEFENDANT: No, sir.
“THE COURT: You understand the contents of it?
“THE DEFENDANT: Yes.
“THE COURT: Is it your intent this afternoon to plead guilty to these counts I’ve asked you about?
“THE DEFENDANT: Yes.
“THE COURT: And in pleading guilty you understand all of the circumstances that could happen to youP
“THE DEFENDANT: Yes.
“THE COURT: But it is still your desire to plead guilty because you are guilty?
“THE DEFENDANT: Yes.
“THE COURT: And what you told me is the truth of what happened?
“THE DEFENDANT: Yes.” (Emphasis added.)
The judge then accepted the plea, stating, “I’m going to consider it freely and voluntarily made.” On January 29, 1993, Moses was sentenced to life imprisonment on the first-degree murder conviction and 15 years to life on tire aggravated robbeiy conviction. The sentences were ordered to run consecutive to each other and consecutive to sentences imposed in Case Nos. 83-002 and 83-011 by die State of Arkansas on June 3, 1983, for which Moses had been on parole at the time of Potter’s death. The plea hearing was transcribed on October 29, 1993.
In 1993, Moses filed a K.S.A. 60-1507 motion which alleged ineffective assistance of counsel, involuntary plea, and illegal sentence. Counsel was appointed to represent him, the district court held a hearing, and the motion was denied by a journal entry filed April 7, 1994. In 2001, Moses submitted a motion to the district court for leave to file an out of time notice of appeal from denial of his 1507 motion. The court denied the motion, holding it did not support a finding of good cause for tire untimely appeal. Moses then filed a motion to alter or amend, claiming he requested his attorney file a notice of appeal of the denial of his 1507 motion and that he had only recently learned his case was not currently on appeal, as was requested in 1994. This motion was also denied. He appealed the denial of his motion to file a notice of appeal out of time and the denial of his motion to alter or amend. These documents are not contained in the record on appeal, but the recited facts are taken from Moses v. State, No. 87,794, unpublished opinion filed August 30,2002, where the Court of Appeals affirmed the district court.
While Moses’ 1507 issues awaited resolution, on May 29, 2001, he also filed with the district court a motion to correct an illegal sentence under K.S.A. 22-3504. He specifically alleged that convictions of both felony murder and the underlying felony violate the Double Jeopardy Clause of tire United States and Kansas Constitutions as well as K.S.A. 21-3107(2)(b), which preclude punishment of a lesser included crime where all elements of the lesser crime are identical to some of the elements of the crime charged. After the district court denied his motion, this court affirmed in State v. Moses, No. 87,855, unpublished opinion filed October 25, 2002. During the pendency of the appeal, on October 10, 2001, his appellate attorney ordered the transcript of the 1992 plea hearing.
On June 25, 2004, approximately 2 years after this court’s opinion was filed in State v. Moses, approximately 2 years after the Court of Appeals’ opinion was filed in Moses v. State, and 12 years after Moses’ guilty pleas, he filed a pro se motion to withdraw his pleas. Counsel was appointed for him, and that attorney filed another motion to set aside the pleas.
On December 15, 2004, a heaxing was held on the motion, and Moses was present. No testimony was presented, and the only exhibit was the transcript of the 1992 plea hearing.
Moses’ counsel argued that the trial court had failed to comply with K.S.A. 22-3210 in 1992 because Moses had not been advised of the rights he would be waiving by entering guilty pleas. The State responded that although the court had not orally advised Moses of the rights he would be waiving, the record in its entirety, including the signed plea petition, demonstrated that his pleas were knowingly and voluntarily made.
The State also asserted that the doctrine of laches barred relief. It argued the unexplained 12-year delay was unreasonable and that the State would suffer prejudice if it was forced to take the case to trial after so much time had passed, as it would be difficult to locate witnesses. The State infoxmed the court that it had tried to find the victim’s sister but was unable to locate her at the phone number and address it had for her. The State additionally said it did not know the whereabouts of several of the law enforcement witnesses, and the arresting officer had subsequently been convicted of voluntary manslaughter and would likely be a hostile witness.
The State also argued that the motion to withdraw plea was, in effect, a successive motion barred under K.S.A. 60-1507(c), as Moses’ 1507 motion in 1993 had claimed his plea was not voluntarily given due to ineffective assistance of counsel and stress at the time.
On February 14,2005, the district court issued a six-page written opinion denying Moses’ motion. The court found that the judge at the 1992 plea hearing had failed to advise Moses of all of the consequences of his guilty pleas as required by 22-3210, i.e., he did not specifically enumerate Moses’ right to a jury trial, his right to cross-examine the State’s witnesses, his right to compel the attendance of witnesses, his right to appeal if convicted by a jury, his right to be represented at trial by counsel, and his right to testify at trial if he so chose although he could not be required to do so. The district court found, however, that under the totality of the circumstances it could be determined that Moses was sufficiently apprised of the consequences to render his pleas knowingly and voluntarily made.
Among other things, the court specifically relied upon the following factors:
“[1] Of much importance in this court’s decision is the fact that the defendant was transported from the penitentiary to this jurisdiction and was present at the time of oral arguments on the motion. The defendant certainly was given the opportunity by the court to testify under oath but declined to do so. Consequently, there is nothing other than the claims contained in the pleadings to indicate that he in fact did not understand the legal consequences of his pleas of guilty. [2] Also supportive of a finding that the defendant understood the legal consequences of his pleas, although not determinative standing alone, is the fact that the defendant’s lawyer explained in detail the contents of a Petition to Enter a Plea of Guilty after which the defendant affixed his signature indicating his understanding of the contents thereof.
“[3] Lastly, there is no reason set forth by the defendant of why he has waited for twelve years during which time he has prosecuted a direct appeal, a prior proceeding pursuant to K.S.A. 60-1507, a recent proceeding pursuant to K.S.A. 60-1507 in which he failed to allege that he did not understand the legal consequences of his guilty pleas. The District Attorney, and understandably so, states that the witnesses in this matter are scattered, police officers have retired and that to now attempt to provide the defendant with a jury trial would be extremely prejudicial to the state.” (Emphasis added.)
ANALYSIS
Issue: Did the district court abuse its discretion in denying Moses’ motion to withdraw his guilty pleas?
Standard of Review
Motions to withdraw pleas are governed by K.S.A. 2004 Supp. 22-3210(d), which states:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
Under subsection (d) of 22-3210, the court may permit a defendant to withdraw a guilty plea after sentencing if doing so will correct a manifest injustice. The decision to deny a motion to withdraw a plea, even after sentencing, lies within the discretion of the trial court, and that decision will not be disturbed on appeal absent a showing of abuse of discretion. State v. Murithi, 273 Kan. 952, 955, 46 P.3d 1145 (2002); State v. Stough, 273 Kan. 113, 119, 41 P.3d 281 (2002). Discretion is abused only when no reasonable person would take the view adopted by the district court. The defendant bears the burden of estabhshing such an abuse of discretion. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003) (citing State v. Bey, 270 Kan. 544, 545-46, 17 P.3d 322 [2001]).
Compliance with K.S.A. 22-3210 (Ensley 1988)
Subsection (a) of K.S.A. 22-3210 (Ensley 1988) sets out the requirements for accepting a guilty plea:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is inode voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.” (Emphasis added.)
Moses contends that the trial court’s failure to advise him of the consequences of his plea and the failure to determine that he understood the consequences of his plea, as required by 22-3210(a)(2) and (3), constitute manifest injustice entitling him to withdraw his guilty pleas. The State argues that under the totality of the circumstances, the court substantially satisfied the statutory requirements.
It is well-settled that an accused who enters a plea of guilty waives certain fundamental constitutional rights, including the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). However, “[f]or this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known rght or privilege.’ ” Boykin, 395 U.S. at 243 n.5 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 [1938]).
K.S.A. 22-3210 was enacted to ensure compliance with the due process requirements set out by the Court in Boykin. State v. Heffelman, 256 Kan. 384, 391, 886 P.2d 823 (1994); Trotter v. State, 218 Kan. 266, 268, 543 P.2d 1023 (1975). Although Kansas courts had long held that a plea of guilty had to be both knowing and voluntary to satisfy the requirements of due process, Boykin added the requirement “ ‘that the record must affirmatively disclose’ a knowing and voluntary plea.” Trotter, 218 Kan. at 268-69. Thus, 22-3210(a)(2) and (3) require the court to inform the defendant that by entering a guilty plea, he or she will be waiving these constitutional rights, and to determine that the defendant voluntarily entered the plea with an understanding of the consequences. State v. Anziana, 17 Kan. App. 2d 570, 571, 840 P.2d 550 (1992) (requires the court to inform defendants that by entering pleas they would be waiving constitutional rights, and to determine the pleas were made with an understanding of those consequences); State v Moore, 16 Kan. App. 2d 472, 476, 825 P.2d 537, rev. denied 250 Kan. 807 (1992) (same).
Here, the district court correctly found that the transcript of the 1992 plea hearing demonstrates the trial judge did not personally inform Moses that, as a consequence of entering pleas of guilty, he would be waiving his privilege against compulsory self-incrimination, his right to trial by jury, his right to confront his accusers, and his right to appeal. It also correctly found that the transcript reveals that the judge in 1992 did not address Moses personally to establish Moses understood he would be waiving specific rights.
Such failures, however, do not automatically result in successful withdrawals of guilty pleas. See State v. Trotter, 218 Kan. 266, 269, 543 P.2d 1023 (1975) (failure to strictly comply with 22-3210 is harmless if, upon review of the entire record, it can be determined the pleas were knowingly and voluntarily made); see also Noble v. State, 240 Kan. 162, 164, 727 P.2d 473 (1986) (Strict compliance with 22-3210 is not mandatory if, upon review of the entire record, the purpose of the rule is otherwise served.).
Accordingly, the State argues that review of the entire record, which includes the written plea petition, demonstrates that Moses’ pleas were made with a full understanding of the rights he would be waiving and, therefore, reversal is not required. In support, the State asserts that the written plea petition signed by Moses explicitly sets out the constitutional rights he would be waiving and contains his acknowledgment that he understood he would be waiving those rights by entering the plea.
Moses responds that a plea petition containing a waiver of those rights cannot excuse the trial court’s failure to personally advise him of the consequences of his pleas in open court as required by 22-3210(a)(2) and (3). He relies upon State v. Browning, 245 Kan. 26, 774 P.2d 935 (1989), State v. Anziana, 17 Kan. App. 2d 570, and State v. Moore, 16 Kan. App. 2d 472, to support his contention that the plea petition cannot substitute for statutory compliance.
In Browning, the defendant appealed the denial of his motion to withdraw his guilty plea for noncompliance with 22-3210. The appeal raised the issue of the extent to which a written plea agreement could substitute for the personal inquiry required by the statute. This court reversed the conviction due to a defective complaint and, therefore, did not reach the plea agreement issue. Neverthe less, to provide guidance to the bench, prosecutors, and criminal law practitioners, the court discussed the issue. We stated that although written plea agreement acknowledgments are encouraged, “such an acknowledgment is emphatically not a substitute for the requirements of K.S.A. 22-3210.” 245 Kan. at 34.
Three years later, in two opinions written by Judge Davis, now Justice Davis, the Court of Appeals relied on our statements in Browning. In State v. Moore, 16 Kan. App. 2d 472, the court held that the written acknowledgment of rights forms and written entry of plea forms signed by the defendants did not cure the trial court’s failure to inform the defendants in open court that as a result of their pleas they would be waiving their privileges against self-incrimination, their rights to a jury trial, and their rights .of confrontation. Neither did the forms cure the trial court’s failure to estaba lish their understanding of such consequences. Moore, 16 Kan. App. 2d at 476-77. The Court of Appeals reversed and remanded for a new trial.
Similarly, in State v. Anziana, 17 Kan. App. 2d 570, the defendant contended that his plea was accepted in violation of 22-3210 because the trial court failed to inform him that by entering a plea he would waive his privilege against compulsory self-incrimination, his right to a juiy trial, and his right of confrontation. The court had also failed to advise him of the potential maximum penalty he faced. Anziana, 17 Kan. App. 2d at 571. Even though the defendant had signed a written plea agreement that explained the waiver of his constitutional rights and set out the maximum penalty that could be imposed, the Court of Appeals held that the written plea agreement could not substitute for compliance with the requirements of 22-3210. It also held the district court had not established that the defendant had entered his plea with an understanding of the consequences. The Court of Appeals reversed and remanded for a new trial. Anziana, 17 Kan. App. 2d at 572.
In the instant case, we agree with the State that Moses signed a written plea petition that clearly set out the constitutional rights he would be waiving. But under the rationale of Browning and the rationale and holdings of Moore and Anziana, that document alone cannot serve as a substitute for the requirement that the court personally inform him of the consequences of entering a plea and determine that he or she understands the consequences. As the United States Supreme Court explained in Boykin:
“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought [citations omitted], and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” Boykin v. Alabama, 395 U.S. at 243-44. (Emphasis added.)
Substantial compliance with K.S.A. 22-3210 (Ensley 1988)
The State also argues, however, that substantial compliance with 22-3210 can be shown when, as here, the court personally asks the defendant about his or her understanding of the plea petition. We acknowledge that this court, in State v. Browning, 245 Kan. 26, quoted language from an Iowa case that suggests a possible scenario where the colloquy between the judge and the defendant about the contents of a written plea agreement could substitute for the trial court’s failure to inform the defendant that entering a guilty plea results in the waiver of specific constitutional rights. See Browning, 245 Kan. at 33 (quoting State v. Fluhr, 287 N.W.2d 857, 864-65 [Iowa 1980]) (“Nor was there sufficient inquiry into his comprehension of parts of the written plea form from which a compelling inference of understanding of the entire form might be drawn.”).
From that language, arguably such a colloquy would include, at the very minimum, an inquiry into the defendant’s understanding of that part of the document that sets out the waiver of rights. For example, if the trial judge had specifically asked Moses if he had read that part of the plea petition setting out the waiver of constitutional rights, and if he understood he would be waiving those rights, that inquiry would come closer to meeting the substance of the 22-3210 requirement.
In the instant case, however, there was no specific inquiry into Moses’ understanding of the waiver of rights portion of the plea petition. The judge only asked general questions about the document — whether Moses had an opportunity to go over the plea petition with his attorney and whether he understood everything in it. We cannot infer from that limited inquiry that Moses understood tire constitutional rights he would be waiving by entering guilty pleas. Accordingly, we conclude that such a general inquiry is insufficient to satisfy the requirement that the court personally advise the defendant that by entering a guilty plea, he would be waving certain constitutional rights, and from that discussion, determine that the defendant understands those consequences.
As at the district court level, however, the State also urges application of the doctrine of laches. It contends that Moses’ unexplained delay of almost 12 years in raising the 22-3210 challenge, combined with the prejudice it would suffer if it were placed in the position of trying the case after that amount of time, justified tire court’s denial of the motion to withdraw the pleas. We acknowledge that in denying the motion the district court noted the unexplained delay in raising an issue Moses could have raised in prior post-conviction challenges, and the prejudice alleged by the State. However, it did not hold that diese reasons alone justified denial of the motion. Instead, it considered these factors as part of the whole in denying the motion.
We agree with the district court’s approach. We affirm our prior holdings stating that we review the entire record, i.e., consider the totality of the circumstances, to determine whether failure to strictly follow 22-3210 is reversible error. See, e.g., Noble v. State, 240 Kan. at 164; James v. State, 220 Kan. at 287; State v. Trotter, 218 Kan. at 269; see also State v. Byrd, 203 Kan. at 52, 453 P.2d 22 (1969) (“An analysis of our decisions indicates permission to withdraw a plea depends upon the facts and circumstances of each case.”).
We also agree with the district court’s decision refusing to allow Moses to withdraw his guilty pleas. A review of the entire record reveals a number of factors supporting the district court’s decision.
First, the district court correctly found nothing other than the claims contained in the pleadings to indicate that Moses in fact did not understand the legal consequences of his guilty pleas. While the court brought Moses from prison to the hearing, Moses apparently elected not to testify. Moreover, his attorney’s motion to withdraw the pleas simply states the statutory requirements were not met, with no factual recitation. Moses’ pro se motion may have contained facts, but it is not included in the record on appeal. Its placement in the record on appeal is Moses’ obligation. State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004). Moses’ approach makes it difficult for him to meet his burden of proving manifest injustice and the district court’s abuse of discretion in denying his motion to withdraw. See State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003).
Second, the district court correctly found, based upon the 1992 plea hearing transcript excerpted earlier in the opinion, that Moses’ 1992 counsel had explained in detail the guilty plea petition to Moses before Moses signed it, indicating his understanding of its contents. At that hearing, Moses informed the court that there was nothing in the petition he did not understand or had any questions about and that he understood its contents. As mentioned, the petition contained paragraph 7 (acknowledging his right to plead not guilty and the affording of the enumerated constitutional rights) and paragraph 8 (acknowledging that his guilty plea meant waiver of all of his constitutional rights enumerated in paragraph 7). Moreover, Moses’ 1992 counsel had certified on the petition that he had fully discussed the contents of the certificate with Moses on November 12,1992. Paragraph 3 of the certificate stated: “To the best of my knowledge and belief, the statements, representations and declarations made by tire defendant in the foregoing petition are in all respects accurate and true.” Finally, according to the transcript Moses informed the court he was satisfied with his defense counsel’s performance. Whether a defendant is represented by competent counsel is a factor to consider in determining whether a guilty plea may be withdrawn. See State v. Bey, 270 Kan. 544, 545, 17 P.3d 322 (2001); see also United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997) (factor of defendant’s assistance of counsel).
Third, the district court correctly found that no reason had been provided by Moses for the 12-year delay between the pleas and the filing of the motion to withdraw. Moses had opportunities to do so, both in his motion and later in person at the hearing. He chose not to testify, and his counsel offered no explanation for the delay. As we stated in State v. Stough, 273 Kan. at 118-19, the motion to withdraw the guilty plea “should be filed with reasonable promptness, as soon as defendant or his counsel learns facts which would justify the court in setting aside the plea.” (citing State v. Nichols, 167 Kan. 565, 578, 207 P.2d 409 [1949]).
We initially observe that the legal basis for Moses’ claim had been in existence for over 30 years at the time of his motion. Boykin v. Alabama, 395 U.S. 238, was decided in 1969. Kansas statutes incorporating Boykins requirements were passed a year later. “[T]he present statutory provision was enacted in 1970 as 22-1210(7) (with language nearly identical to K.S.A. 22-3210(d).” State v. Stough, 273 Kan. at 118. Further, even if we assume Moses had forgotten the facts from the 1992 hearing, we observe that his appellate counsel for the 1507 issues had asked for the hearing transcript in October 2001, almost 3 years before Moses filed his withdrawal motion. Consequently, we cannot conclude that Moses filed his motion with reasonable promptness, a factor in considering a motion to withdraw a plea. See State v. Stough, 273 Kan. 113; see also United States v. Graves, 106 F.3d at 343 (whether defendant has delayed in filing his withdrawal motion is a factor); People v. Castaneda, 37 Cal. App. 4th 1612, 1618, 44 Cal. Rptr. 2d 666 (1995) (discussing a 12-year delay); State v. Tweed, 312 Mont. 482, 490, 59 P.3d 1105 (2002) (one factor is “the promptness with which the defendant attempts to withdraw the plea”).
As part of the district court’s analysis concerning the unexplained 12-year delay, it correctly found that Moses had filed at least one prior direct appeal and at least one prior 1507 motion since his guilty pleas were offered in 1992. In short, Moses could have brought a prior challenge based upon 22-3210 in those relief vehicles — particularly the 1507 motion in 1993 when he argued that his pleas had been involuntarily given — but did not. When the State made this argument at the hearing, Moses did not respond. These failures are a valid consideration when determining whether a plea should be withdrawn. See Hart v. State, 116 Nev. 558, 564, 1 P.3d 969 (2000) (In considering whether to allow withdrawal of a guilty plea, “where a defendant previously has sought relief from the judgment, the defendant’s failure to identify all grounds for relief in the first instance should weigh against consideration of the successive motion.”); see also United States v. Graves, 106 F.3d at 343 (whether the withdrawal would waste judicial resources; inconvenience the court).
Finally, the district court correctly found that the State presented evidence of the prejudice it would suffer if it had to go to trial on this case after such a lengthy passage of time. Moses presented no evidence controverting this allegation. Prejudice to the State is a valid factor for consideration. See United States v. Graves, 106 F.3d at 343 (resulting prejudice to the government). As the Montana Supreme Court stated in State v. LeMay, 144 Mont. 315, 321, 396 P.2d 83 (1964):
“One cannot delay until the witnesses are gone and the prosecutrix has reconstructed her life so that she would be unwilling to testify, and then make a motion to withdraw his plea of guilty in the expectation that no one will prosecute or testify against him. If such procedure was encouraged certainly justice would be circumvented. When there is an unreasonable delay in making a motion to change a plea of guilty, the defendant must show justification for such a delay or the trial court will properly refuse the motion on the basis of this delay. This is necessary to protect the public in criminal prosecutions.”
See also People v. Palmer, 49 Cal. App. 2d 567, 572, 122 P.2d 109 (1942) (appellate court held it would be mockery of justice to permit defendant to withdrew his plea after his flight and concealment for 12 years, after material witnesses may have died or disappeared).
There are other factors which, although not mentioned by the district court, are relevant for our consideration in the instant case.
First, at the time of his pleas, Moses was 27 years old and familiar with the criminal justice system, having been convicted in two different cases in Arkansas 9 years earlier and eventually released on parole for these crimes. See Trotter v. State, 218 Kan. at 269 (“The appellant was 34 years old and no stranger to the criminal justice system. Less than a year had passed since he had been released on parole after serving six years on a sentence for felony offenses similar to those with which he was charged in the instant case.”); James v. State, 220 Kan. at 287. Moses’ prior involvement in the criminal justice system suggests he had obtained some understanding of his constitutional rights independent of his guilty plea petition and counsel’s explanation in 1992.
Second, Moses heard the State’s evidence at the preliminary hearing and was well apprised of the State’s case against him. See Trotter v. State, 218 Kan. at 269. Accordingly, he had a good idea of his chances to receive a Hard 40 sentence, based upon evidence of aggravating circumstances such as his heinous, atrocious, and cruel conduct and committing the crime for the purpose of receiving money or something of monetary value. See K.S.A. 1992 Supp. 21-4624(5); K.S.A. 1992 Supp. 21-4625(3) and (6). The guilty plea petition reveals sentencing had been discussed with Moses by counsel. He clearly pled guilty in exchange for the State dropping its request for a Hard 40 sentence, which in effect reduced a sentence of 40 years without parole eligibility to a sentence of life with parole eligibility in 15 years according to the statutes in effect in 1992. See K.S.A. 1992 Supp. 22-3717(b); State v. Tweed, 312 Mont. at 490 (“the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for the dismissal of another charge” considered by court in abuse of discretion analysis). Moses’ favorable plea bargain is particularly a factor worthy of our consideration because he has never asserted his innocence. See United States v. Graves, 106 F.3d at 343 (whether a defendant has asserted his or her innocence is a factor to consider).
Because we cannot say that no reasonable person would take the view adopted by the district court, we hold it did not abuse its discretion when it found no manifest injustice warranting approval of Moses’ motion to withdraw his guilty pleas.
We also briefly address two additional arguments raised by Moses. First, he argues that the trial court violated his Fifth Amendment right against compelled self-incrimination when, during the plea proceeding, it failed to advise him of his rights and obtain his waiver before asking him to explain what he did. Second, he argues that the signature on the plea petition was not his. These arguments were made for the first time on appeal. We will not consider them based upon the authority of State v. Solomon, 257 Kan. 212, 221-22, 891 P.2d 407 (1995) (court refused to consider claim defendant’s plea must be set aside because he was not advised of privilege against self-incrimination and right to confront accusers where those arguments were not presented to trial court), and Noble v. State, 240 Kan. at 169-70.
Affirmed.
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Per Curiam:
This is an original disciplinary proceeding against the Respondent, George R. Robertson, a District Judge of the 28th Judicial District. The Kansas Commission on Judicial Qualifications (Commission) initiated the proceeding and, after conducting a hearing, found that the Respondent violated Canon 1 (2004 Kan. Ct. R. Annot. 539), Canon 2 (2004 Kan. Ct. R. Annot. 539), and Canon 4(A)(2) (2004 Kan. Ct. R. Annot. 549) of the Code of Judicial Conduct, as set out in Rule 601A of the Rules of the Kansas Supreme Court. The Commission’s findings of misconduct arise from the Respondent’s admitted violation of the 28th Judicial District’s administrative order regarding computer and internet usage. The Respondent violated the administrative order when, over an extended period of time, he frequently used the county-owned computer located in his office at the Saline County Courthouse to access and display sexually explicit images, messages, and materials. Based upon this misconduct, five members of the Commission recommended that the Respondent be removed from office; two members dissented and recommended public censure accompanied by suspension without pay for a period of time.
The Respondent takes exception to the Commission’s recommendation of removal and asks this court to impose a less severe sanction. In the alternative, the Respondent requests that the matter be remanded to the Commission with instructions that it con sider evidence of Respondent’s current psychological condition and ability to return to the bench.
Commissions Findings of Fact
This proceeding began when the Commission received a complaint that Respondent had failed to comply with the Code of Judicial Conduct. Upon receipt of the complaint, the Commission, which is evenly divided into two panels, assigned one panel to conduct an investigation. See Rule 602 (2004 Sup. Ct. R. Annot. 564); Rule 609 (2004 Sup. Ct. R. Annot. 570). The investigating panel concluded there was sufficient cause to institute formal proceedings. As a result, a formal complaint was filed against the Respondent. The Respondent answered the complaint by denying that his conduct constituted a violation of the Code of Judicial Conduct. When the complaint was filed, this court placed the Respondent on paid administrative leave beginning February 9, 2005.
Subsequently, the second panel of the Commission — the panel which did not perform the investigation — conducted a formal hearing. The hearing panel was composed of two nonlawyers, two lawyers, and three judges. Several witnesses, including the Respondent, testified and evidence was presented to the panel. After the hearing, the panel filed written findings of fact, conclusions of law, and recommendations regarding the discipline of the Respondent. The Commission concluded that the following facts were established by clear and convincing evidence:
“1. Administrative Order #40 of the 28th Judicial District approved February 11, 2000, by Chief Judge Daniel L. Hebert, currently renumbered to Administrative Order# 35 by virtue of the delegation of other orders, establishes a uniform policy regarding computer and internet usage by all court staff. Subsection III. B. provides in relevant part: ‘Access/display of a transmission/downloading of sexually explicit images, messages or materials of any kind is specifically prohibited.’
“2. In December 2004, Brad Bowers, Director of Computer Technology for Saline County, discovered through use of an application called Symantec Web Security that adult websites were being visited by Judge George Robertson on county-owned equipment utilized by the Judicial Branch in Judge Robertson’s office at the Saline County Courthouse during the time period referenced. That information was relayed to county officials.
“3. Twenty-three pages of access information gathered by Mr. Bowers regarding Judge Robertson’s internet access between November 2, 2004, and January 26, 2005, were admitted into evidence at the hearing by stipulation.
“4. Judge Robertson admitted that he started looking at adult websites on his office computer in early 2004, which practice continued until discovery by county officials.
“5. Dave Wood, investigator for the Disciplinary Administrator’s Office and the Commission on Judicial Qualifications, reviewed the Symantec Web Security Access Report as well as the websites detailed and determined that Judge Robertson had visited numerous pornographic websites repeatedly to access sexually explicit images, messages, or materials.
“6. At the May 25, 2005, hearing, Judge Robertson testified that he knew his internet activity was inappropriate on several levels but that the pressures of his judicial position and Iris volunteer commitments at his church led him to continue the activity.
“7. At the May 25, 2005, hearing, the Panel received by stipulation evaluations of Judge Robertson written by licensed psychologist Gloria J. Jones and licensed social worker Chris L. McKee. Judge Robertson continues under treatment for depression.
“8. The Panel received by stipulation letters of support written by twenty-three individuals.
“9. The Panel heard testimony from Judges of the 28th Judicial District which detailed Judge Robertson’s accomplishments on the bench as well as the ‘irreparable harm’ caused to the judiciary by his current conduct.”
Commission s Conclusions of Law
Based upon the above facts, the Commission concluded that the Respondent violated Canons 1,2, and 4A(2) of the Code of Judicial Conduct.
Canon 1 provides:
“A Judge Shall Uphold the Integrity and Independence of the Judiciary
“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.” (2004 Kan. Ct. R. Annot. 539.)
Canon 2 provides, in relevant part:
“A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities
“A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” (2004 Kan. Ct. R. Annot. 539.)
Canon 4A(2) provides, in relevant part:
“A Judge Shall so Conduct the Judge’s Extra-judicial Activities as to Minimize the Risk of Conflict iviih Judicial Obligations
“A. Extra-judicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
(2) demean the judicial office . . . .” (2004 Kan. Ct. R. Annot. 549.)
The Commission further concluded that any evidence offered in mitigation was not sufficient to overcome the Commission’s findings. As previously noted, five members of the panel recommended removal from office. Two other members, who felt that the Respondent’s conduct was an aberration and not likely to recur, recommended public censure and an unspecified period of suspension without pay.
Analysis
Respondent did not file exceptions to the Commission’s findings of fact and conclusions of law. Consequently, the findings and conclusions are conclusive. Supreme Court Rule 623 (2004 Kan. Ct. R. Annot. 577). We, therefore, find that the Respondent has violated Canon 1, Canon 2, and Canon 4(A)(2) of the Code of Judicial Conduct.
In light of these violations, the court must determine, under the circumstances of the case, what discipline is “deemed proper and just.” Supreme Court Rule 623(d). The potential options for discipline are public censure, suspension, or removal from office. Supreme Court Rule 620 (2004 Kan. Ct. R. Annot. 575). The Commission’s recommendation of removal from office, to which the Respondent has taken exception, is not binding on the court. See In re Platt, 269 Kan. 509, 528, 8 P.3d 686 (2000).
In arguing that his conduct does not justify the sanction of removal which was recommended by the Commission, the Respondent argues that courts should be cautious in removing judges because doing so disrupts the public’s choice of who should serve in the judiciaiy. He argues that public choice is expressed in retention elections which follow a judge’s appointment to office (which is Respondent’s situation), just as it is expressed in contested judicial elections. We agree. However, the public has also expressed its choice to have a system of discipline which can result in a judge’s removal from office. This choice is expressed in Article 3, § 15 of the Kansas Constitution which provides that a judge “shall be subject to retirement for incapacity, and to discipline, suspension and removal for cause by the supreme court after appropriate hearing.” See In re Yandell, 244 Kan. 709, 717, 772 P.2d 807 (1989) (retention vote after misconduct occurred may be a mitigating factor, but “such retention certainly does not preclude this court from imposing discipline for respondent’s conduct during his prior term”).
The Respondent also argues that judges have rarely been removed from office for misconduct and that imposition of such a severe sanction based upon his misconduct would be disproportionate to the sanctions imposed in other Kansas cases and in other jurisdictions. He relies upon Kansas cases involving inappropriate sexual relations or advances as well as nonsexual misconduct cases which he contends involved more egregious misconduct; in these cases the judges were not removed from office. The Respondent also cites decisions from other states where judges who had accessed pornography through court computers were disciplined with suspension or private admonishment. However, as we have noted in attorney discipline cases, “[cjomparison of past sanctions imposed in disciplinary cases is of little guidance. Each case is evaluated individually in light of its particular facts and circumstances and in light of protecting the public.” In re Jones, 252 Kan. 236, 239, 843 P.2d 709 (1992) (attorney discipline).
As we evaluate the circumstances of a particular case, it is appropriate to consider the extent of the misconduct, the nature of the misconduct, the judge’s conduct in response to the Commission’s inquiry and disciplinary proceedings, the judge’s discipline record and reputation, and the effect the misconduct had upon the integrity of and respect for the judiciary. Gray, Handbook for Members of Judicial Conduct Commissions 15 (American Judica ture Society 1999). When these factors are applied in this case, some factors are mitigating while others are aggravating.
Respondent contends the mitigating evidence weighs in favor of a sanction which is less severe than removal. He points out that his conduct was unobtrusive and did not directly involve anyone else. We also note that the Respondent was candid and cooperative during the Commission s inquiry. He acknowledged his misconduct and showed remorse, making apologies to the public, his family, the court, and other judges.
Respondent also presented evidence that he had sought treatment and evaluation for his avoidant behavior, anxiety, and depression. The Respondent testified that these conditions were induced by the stresses placed upon him as a church elder. He explained that he spent from 15-40 hours per week on church activities. These activities included everything from negotiating a lease for a boys facility and dealing with bills and budget matters to teaching classes and visiting people in the hospital. He explained that his viewing of pornographic websites was a form of escape or diversion, but that it did not affect his abilities or performance as a judge. At the time of the Commission hearing, the Respondent was taking medication and was in psychotherapy.
As a final consideration in mitigation, we note that the Chief Judge of the 28th Judicial District testified that during the time period in question, he saw no indication that the Respondent was having any trouble with his judicial responsibilities or difficulty keeping up with the work of his division. Other judges of the 28th Judicial District testified that the Respondent was a capable and fair judge.
Against these mitigating factors there weigh several aggravating factors. First, the misconduct was not isolated. Respondent testified he first began viewing sexually explicit websites around March 2004, 9 months before his conduct was discovered. Once discovered, Saline County officials used an application, Symantec Web Security, to document the time, date, and web address of each adult website viewed by the Respondent. The report, covering the period from November 2, 2004 until January 26, 2005, is 23 pages in length.
A second aggravating factor is that these activities occurred through use of county-owned computer equipment while Respondent was in his courthouse chambers and during official court hours.
Third, the examiner also introduced evidence by stipulation of a prior cease and desist order issued to the Respondent by the Commission on Judicial Qualifications in May 1997. According to the order, the Respondent imposed a probation condition upon a juvenile offender prohibiting that offender from associating with Hispanic males under the age of 21 unless in the company of an adult or unless they were family members. The Commission determined that the Respondent’s conduct violated Canons 2(A) (judge shall avoid impropriety or the appearance of impropriety) and 3(B)(5) (judge shall perform duties without bias or prejudice) (2004 Kan. Ct. R. Annot. 542) and ordered the Respondent to cease and desist.
Fourth, the Respondent’s conduct showed disrespect for a basic principle which underlies the judicial system: respect for judicial orders. To function effectively as a judicial officer, the Respondent must expect others to follow judicial orders. Yet, to satisfy his own interests, the Respondent violated his own court’s administrative order, an order with which all employees of the 28th Judicial District were and are expected to comply. Respondent seeks to set himself apart from the others bound by the administrative order and all other court orders.
Finally, and under the circumstances of this case, the most serious aggravating factor is the effect the misconduct had upon the integrity of and respect for the judiciary. The Preamble to the Kansas Code of Judicial Conduct reminds judges they “must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.” Rule 601A (2004 Kan. Ct. R. Annot. 535). Because public trust is essential to an effective judicial system and one judge’s conduct may have a significant impact upon the public’s perception of the entire judicial system, “[a] judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Canon 2, Commentary (2004 Kan. Ct. R. Annot. 540).
Clearly, the Respondent did not heed these warnings. The result, according to several witnesses who testified at the hearing, is a severe erosion of public confidence. The Chief Judge of the district testified that if the Respondent were to return to the bench, the Chief Judge would have difficulty assigning the Respondent a docket because of the publicity surrounding his misconduct. As the Chief Judge testified, “[I]t would be very difficult to establish public confidence in the judicial [decision]-making capacity when there’s been such a severe lapse in . . . judgment.” The Respondent’s other judicial colleagues testified that the Respondent’s misconduct showed a “lack of judgment” and had caused “irreparable harm” and embarrassment to the judiciary.
The aim of judicial discipline “is the maintenance of the honor and dignity of the judiciary and the proper administration of justice rather than the punishment of the individual.” State ex rel. Comm'n on Judicial Qualifications v. Rome, 229 Kan. 195, 206, 623 P.2d 1307 (1981). This principle directs the outcome in this case.
After carefully reviewing the entire record, a majority of the court concludes that the appropriate sanction is removal from office. . ;
It Is Therefore Ordered that Judge George R. Robertson be and he is hereby removed from office as District Judge of the 28th Judicial District effective forthwith.
It Is Further Ordered that this order be published in the official Kansas Reports and that costs of this action be assessed to the Respondent.
SUPREME COURT OF KANSAS 280 Kan. In re Robertson
Nuss, J., not participating.
Rulon, C.J., assigned.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Nuss, J.:
Abel Torres appeals his conviction of felony murder of his 21-month-old daughter, based on the underlying crime of felony abuse of a child. Our jurisdiction is under K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment imposed).
Torres presents multiple issues on appeal. Those issues, and our accompanying holdings, are as follows:
1. Was there sufficient evidence to convict Torres of felony murder? Yes.
2. Was Torres’ Sixth Amendment right to confront the witnesses against him violated when the State placed into evidence statements he gave to law enforcement officials? No.
3. Were Torres’ constitutional rights violated because:
(a) The State failed to record his two interviews by law enforcement officials? No.
(b) The district court failed to instruct the jury on the state’s failure to record the interviews? No.
4. Did the district court err by allowing evidence of Torres’ statements to law enforcement officials? No.
5. Did the district court err by failing to give jury instructions for the lesser included offenses of reckless second-degree murder and recldess involuntary manslaughter? No.
6. Did the district court err in admitting certain autopsy photographs? No.
7. Did the district court err in denying a motion for mistrial based upon allegations of prosecutorial misconduct for witness tampering? No.
8. Did die district court err in allowing the jury to see demonstrative illustrations on “shaken impact” and “shaken baby” syndrome? No.
9. Did the district court err in allowing the State to call six expert witnesses? No.
10. Did the district court err by failing to exclude certain testimony of expert witness Dr. Mary Dudley? No.
11. Did the cumulative effect of any errors deprive Torres of his right to a fair trial? No.
Accordingly, we affirm the district court.
FACTS
Tianna Rodriguez was almost 21 months old at the time of her death on June 27, 2001. She lived with her mother, Susan Rodriguez, and her father, Abel Torres, in Leoti.
Tianna had been sick with a fever and vomiting on Sunday, June 24, but her condition appeared to improve the next day. On Monday, June 25, Tianna and her parents visited her grandparents and returned home. Later that day, Torres drove Susan to work and Tianna rode with them.
That evening, Torres called his mother, Teresa Torres, and told her that Tianna was playing with her dolls in the front room and waiting for supper. A few seconds later, Torres called Teresa again and said, “[M] other, come quick, she fell and she’s unconscious.” Teresa drove to the house and noticed that Tianna’s clothing was wet. Teresa ran her to the bathroom and put water on her face, but there was no response, so Teresa called the hospital.
Emergency medical technician (EMT) personnel arrived at the house and found Tianna unresponsive and her breathing shallow. Tianna was taken by ambulance to the Wichita County Hospital in Leoti.
While Susan was at work, she received a phone call to go to the emergency room because something was wrong with Tianna. Susan arrived as Tianna was being brought in. While the medical personnel were trying to revive Tianna, Susan asked Torres what happened. Torres said that Tianna fell off a chair.
At the hospital Dr. David Thetford, a Leoti physician, observed that every couple of minutes Tianna was having what appeared to be seizures. She also had a slight temperature and an elevated white blood cell count. Tianna’s condition did not change at the hospital, and she remained unresponsive. Concerned that she might have an infection, Dr. Thetford arranged transfer to St. Catherine’s Hospital in Garden City for pediatric evaluation and further treatment. Dr. Thetford did not believe that Tianna’s condition was consistent with the report that she had fallen off of a chair.
Tianna was taken by ambulance to Garden City for a CAT scan. She remained totally unresponsive and her eyes were dilated, but she was breathing fine and there were no more seizures. Tianna arrived at St. Catherine’s Hospital at 9 p.m.
Dr. Soen B. Liong is a radiologist at St. Catherine’s Hospital who consulted on Tianna. According to him, CAT scans of Tianna’s brain and spine showed swelling, fresh blood up to 2 days old, as well as a small amount of old blood up to a week old. He diagnosed an intentional injury, i.e., shaken baby syndrome.
Dr. James Zauche is a pediatrician who treated Tianna at St. Catherine’s. According to him, Tianna had abnormal findings on the neurological exam, her eye exam was not normal, and she was showing abnormal movements consistent with a brain injury. Dr. Zauche’s first diagnosis was that Tianna had a hemorrhage in her brain, which necessitated her transfer to Wichita. His second diagnosis, based on Dr. Liong’s findings, was that the injuries were consistent with shaken baby syndrome. Dr. Zauche did not believe that the injuries were consistent with falling off a chair.
Tianna was then flown to Wesley Medical Center in Wichita and entered the intensive care unit. Dr. Lindall Smith made contact with her around 2 a.m. on Tuesday, June 26. A CAT scan was taken approximately 3 hours after the one in Garden City. During this interval, brain swelling had increased significantly. According to Dr. Smith, Tianna responded only to painful stimuli, and her response was to posture, that is, to stiffen her arms or legs. Posturing is a very minimal response that Dr. Smith sometimes sees with severe head injuries. Tianna also had bilateral retinal hemorrhages and high levels of intracranial pressure.
During this time, Wesley personnel obtained Tianna’s medical history from her parents. On June 24, she had a fever and vomiting and was not her usual active self. By the next day, however, she was back to normal. Tianna and Torres had supper together and were sitting in a rocking chair. Torres got up out of the chair to leave the room leaving Tianna in the chair. Torres heard her fall, returned to the room, and found Tianna face down on the floor fairly unresponsive.
According to the medical history provided, Tianna also had fallen out of a grocery cart onto a concrete floor in May or April of 2001 but did not have any loss of consciousness from that fall. There was also a suspected fall from her bed several weeks before the June 2001 fall from her chair. She was thought to have been jumping on her bed and had some kind of mark on her face. Tianna was taken to the local ER and evaluated, but she was not thought to have any loss of consciousness or any significant findings of neurological impairment.
On Tuesday, June 26, the day Tianna arrived in Wesley, Susan again asked Torres what had happened to Tianna the previous day. Torres again replied that she had fallen off the chair. Susan told Torres she had been informed of his shaking Tianna. He then admitted to shaking her but claimed he had not done so on purpose. Susan had another telephone conversation with Torres early in the morning on Wednesday, June 27. At this time, he told her that Tianna had simply fallen and that he had not done anything.
After Torres returned to Leoti, he and his mother went to the hospital there to talk with Dr. Thetford. Dr. Thetford told them that Torres needed to talk to the sheriff and that everybody who had been around Tianna was a suspect.
Karen King is a social worker at Wesley Medical Center assigned to cover possible child abuse cases. She had several conversations with Susan throughout the day on June 27. King was present while Susan phoned Torres from King’s office. According to King, Susan asked Torres, “Did you shake her?” Susan then said, “Why didn’t you tell me? We could have gotten her help sooner.” Susan was upset and was crying and told Torres, “I don’t hate you. I will always love you.” King believed that Torres was admitting that he had shaken the child. After Susan finished the call, she confirmed to King that Torres said he had shaken Tianna three times.
Later that day, on June 27, after a series of tests, the doctors determined that Tianna was brain dead and removed her from support at 12:55 p.m.
On the day of Tianna’s death Kelly Robbins, a special agent for the KBI who was assigned to this case, and Wichita County Sheriff Wayne Collins interviewed Torres from 8:30 to 10:30 a.m. in Leoti at the sheriff s department. Robbins testified:
“He [Torres] said that they had slept late on Sunday [June 24], gotten up around 10 to 11 a.m. and they had breakfast. Around 1:30 p.m. Tianna was fussy and he took her into his and Susan’s bedroom. While in the bedroom Tianna was hitting and kicking and biting him, trying to get away from him. He — to try and keep her from doing this and to calm her down, he said that he world grab her by her hands and pull her real hard towards him. Then he would put his arms around her, trying to keep her from the kicking and hitting until she calmed down. He said then he would — once she calmed down, he would sit her next to him or lay her down next to him and he would try to be real nice to her like trying to get her to give him a hug or give her babies a hug. Then all of a sudden she would snap again, start the crying and fighting him, trying to get away from him, so he would grab her hands again, pull her real hard towards him. And then he would put his arms around her and try to control her again. He said that happened about three times during that period. ... He said that he pulled her hard enough by her hands that her head would bounce and that he felt that it could have hurt her, it was that hard. Also, when he was putting his arms around her to try and control her, he said that he squeezed her hard enough that he felt that it could have broken her rib.”
According to Robbins, Torres said that the last time Torres pulled and squeezed Tianna, she became hysterical and vomited shortly afterward. She continued to vomit. Torres and Susan gave her a cool bath to cool her off. During that time she acted really tired, her eyes would roll back in her head, and she was having a hard time staying awake. They called the hospital, received instructions on what to do, picked up medicine and papers from the hospital, and watched her throughout the evening. Tianna continued to vomit until midnight, when she was able to keep some food and liquid down.
Torres told Robbins that on Monday, June 25, they got up late and had breakfast. Tianna was still very weak and stumbling some when they went to his parents, but she was better than the day before. Susan went to work around 4 p.m., and Torres stayed home to watch Tianna.
According to Robbins:
“He [Torres] said he fed her spaghetti and meatballs that evening, and after she had eaten, he put her in the green swivel chair with her dolls or her babies, and then he had walked out of the room, and that’s when he heard Tianna fall. When he came into the room, she was lying face down on the floor in front of the green swivel chair holding her head with her hands. ... He said that he went over to her. She was not breathing real well. He gave her a few breaths with CPR. He had — and then she went unconscious. He panicked and called his mother.”
Robbins testified that Torres said he did not intend to harm his daughter and that he forgot how fragile she was and how much bigger he was than she was. He said that he was just trying to make Tianna like him and that he just got too rough with her. Torres was allowed to leave the sheriff s department with his mother after the interview.
Robbins and Collins interviewed Torres at the sheriff s department again on July 6,2001, 9 days after Tianna’s death. They asked Torres to come in and visit with them because they had additional information from the autopsy. Robbins testified about what Torres told them on that date:
“He said that after Susan — they dropped Susan off for work [on June 25], him and Tianna drove around listening to music for about 15 minutes. When they got home, he did feed her spaghetti and meatballs. She was sitting on his lap. They were sitting on the green swivel chair, fed her a little bit, and she got sick and vomited all over him, and this made him very upset and mad.
“He said that he did not want to hurt Tianna by spanking her for what she did, so instead, he took her into his and Susan’s bedroom and stood at the foot of the bed and threw Tianna very hard to the top of the bed. He was aiming for the pillows, but he missed the pillows, and the right side of her head hit the end table that’s on the west side of the bed.
“He said that when she hit that end table, she screamed and held her head. He knew that from the scream he had hurt her pretty bad. He went over and picked her up and she was unconscious in his arms. He took her shirt off, was going to try and give her a cool bath again to try and revive her, and he realized she was in pretty bad shape.
“He panicked and said — called his mother who came over. She, again, did try to wipe her down and realized that that was not going to work and his mother called the hospital for an ambulance.”
At the end of the interview, Robbins asked Torres if he wanted to have Robbins tell his mother and father what happened, or if Torres wanted to tell them. Torres spoke to his mother alone in tire interview room but told Robbins he did not want to talk with his father. Torres told Robbins that he wanted to talk to his mother first and then he was going home to tell Susan what happened. He then left the sheriff s department.
That same day, July 6, Susan had a conversation with Torres outside her home. According to Susan, Torres also told her that he was feeding Tianna and she had thrown up on him. He took her to the bedroom, shook her, and tossed her onto the bed, but she bounced and her head hit a night stand. Susan’s impression was that Torres had shaken Tianna violently.
Torres was arrested for Tianna’s death 3 days later on July 9.
Several medical experts testified in detail at the trial, giving their medical opinions on what caused Tianna’s injuries and resulting death. Highly summarized, the experts testified that Tianna suffered from severe brain injury, retinal hemorrhages, a linear skull fracture, swelling and flattening of the brain, fractures of her first, second, and eleventh ribs, injuries to her hands and feet, and various bruises.
Dr. Smith of Wesley Medical Center did not believe that Tianna could have been injured on Saturday (June 23) to cause this type of brain injury. He also testified that a child of Tianna’s age and size could not sustain these injuries from falling off of a chair. He testified that the injuries could be consistent with someone violently shaking her, throwing her approximately 7 feet, and hitting her head on the side of an end table.
Dr. Debra Desilet-Dobbs, a pediatric radiologist, testified that the presence of both the subdural hematoma and the brain injury indicates veiy significant intense trauma. According to her, these injuries are seen in high-speed head-on vehicle collisions and, in the nonaccidental cases, with violent shaken impact. She testified that both injuries were caused by the same event. Dr. Desilet-Dobbs found that it was highly unlikely the injury occurred before Sunday, June 24.
Dr. Maiy Dudley is an expert in shaken baby syndrome and shaken impact syndrome and performed the autopsy on Tianna on June 28, 2001. Her diagnosis of Tianna's death was shaken impact syndrome. According to Dr. Dudley, the injuries would not be consistent with falling from a chair and a previous falling out of a grocery cart. The injuries would, however, be consistent with shaking and throwing a child the length of a bed causing the child to strike her head on a night stand. Tianna’s injuries indicate both a shaking and an impact.
Dr. Katherine Melhom is a pediatrician and faculty member at the University of Kansas School of Medicine in Wichita. She was consulted as a physician on the care team when Tianna was admitted to the hospital. Dr. Melhom observed bmises on the left side of her chest and retinal hemorrhages in both eyes but not a lot of obvious external injuries.
For the defense, Dr. Richard Gilmartin, a child neurologist, testified as an expert witness on head injuries resulting from child abuse. Dr. Gilmartin reviewed Tianna’s outpatient records and testified that there was no evidence that Tianna was shaken. In Dr. Gilmartin’s opinion, Tianna died of trauma, brain swelling, and uncal herniation. He testified that brain swelling that began on Monday, June 25, could not cause the brain sutures to stretch apart so quickly. While he believed that Tianna died as a result of severe child abuse, he did not believe that throwing a child 6 or 7 feet into a night stand would inflict an injury sufficient to cause death.
Torres called several other witnesses to testily about Tianna’s activities and injuries prior to her death.
After the juiy convicted Torres of first-degree felony murder based on the underlying crime of felony abuse of a child, he was sentenced to life in prison, with no eligibility of parole for 20 years.
ANALYSIS
Issue 1: Was there sufficient evidence to convict Torres of felony murder?
Torres first alleges insufficient evidence to support his conviction.
Our standard is well-known:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Burhans, 277 Kan. 858, 871, 89 P.3d 629 (2004).
For a conviction of felony murder, the factfinder must find that tire killing of a human being was committed “in tire commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401. Abuse of a child is listed as an inherently dangerous felony in K.S.A. 21-3436(a)(7), whether or not it is so distinct from the homicide as not to be an ingredient of the homicide. Abuse of a child is defined as “intentionally torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 21-3609.
Torres specifically argues the State failed to sufficiently show intentional, cruel, and inhuman bodily punishment and that his actions caused Tianna’s injuries.
It was undisputed that Torres was the only person with Tianna when she became unconscious. Susan and Kelly Robbins both testified that Torres admitted to them that he shook the 21-month-old Tianna and threw her toward the bed but Tianna hit her head on a night stand. Dr. Liong and Dr. Zauche testified that the injury was an intentional injury, shaken baby syndrome, and that Tianna’s injuries were not consistent with falling off a chair. Dr. Smith and Dr. Desilet-Dobbs gave opinions that Tianna’s injury occurred shortly before she became unresponsive on June 25. Dr. Dudley testified that Tianna’s injuries indicated both a shaking and an impact. Even Torres’ own expert, Dr. Gilmartin, testified that though he felt there was no evidence Tianna was shaken, he believed that she died as a result of severe child abuse.
In viewing the evidence in the light most favorable to the prosecution, we conclude a rational factfinder could find beyond a reasonable doubt that Torres committed felony murder based on tire underlying felony of abuse of a child.
Issue 2: Was Torres’ Sixth Amendment right to confront the witnesses against him violated when the State placed into evidence statements he gave to law enforcement officials?
Torres complains that his Sixth Amendment right of confrontation was violated when the State presented the jury with evidence of his statements to law enforcement officers. This Sixth Amendment argument was not presented to the district court, and no objection was made when the statements were introduced into evidence. Generally, where constitutional grounds are asserted for the first time on appeal, they are not properly before this court for review. State v. Denney, 278 Kan. 643, 651, 101 P.3d 1257 (2004). Additionally, a timely and specific objection for the admission of evidence is necessary to preserve the issue for appeal. State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001); see K.S.A. 60-404.
Because this argument appears to be recurring, however, we will address it now.
The Sixth Amendment of the United States Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted unth the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defense.” (Emphasis added.)
Torres relies heavily upon Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), as support for his argument. In Crawford, the Court held that testimonial statements of unavailable witnesses are inadmissible unless the defendant was afforded an opportunity to cross-examine those witnesses. Torres claims that Crawford also applies to defendant’s statements to police. While the Crawford Court stated that statements taken during police interrogations are testimonial, the Court was clearly discussing interrogations of people other than the defendant.
Torres claims that he is in a “catch-22” in that either he can forego his Fifth Amendment right against self-incrimination and testify himself about the alleged statements, or he can exercise his Fifth Amendment right and allow the unchecked testimonial statements into evidence. He argues that this dilemma, created by the statements’ admission into evidence, is a violation of the doctrine of unconstitutional conditions, as illustrated by Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968).
In Simmons, a defendant testified at his unsuccessful motion to suppress. The Government then used this testimony against the defendant at trial. The United States Supreme Court found that the testimony at the motion to suppress should not have been admissible at trial on the question of guilt or innocence. 390 U.S. at 390. The Court reasoned that such a scenario required the defendant seeking to suppress evidence to either give up a potentially valid Fourth Amendment claim or waive his Fifth Amendment privilege against self-incrimination, something the Court found to be intolerable. 390 U.S. at 394.
Torres’ right against self-incrimination and his right to confront the witnesses against him are not conflicting. Torres was not compelled to disclose information to law enforcement, but he chose to do so. We are unaware of any authority holding that “confronting oneself’ at trial under these circumstances is a right guaranteed by the Sixth Amendment. Torres fails to show that his Sixth Amendment rights were violated.
Issue 3: Were Torres’ constitutional rights violated because:
(a) The State did not record his two interviews by law enforcement officials?
(b) The court failed to instruct the jury on the State’s failure to record the interviews?
Torres claims that his constitutional rights were violated because the State failed to preserve potentially useful evidence, i.e., failed to record his two interviews with law enforcement. He cites Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), as the basis for the recording requirement.
The failure to record an interview through audio or video technology is not within the realm of the Youngblood decision. The Youngblood Court spoke about evidentiary material that “could have been subjected to tests, the results of which might have exonerated the defendant.” 488 U.S. at 57.
Moreover, the Court in Youngblood stated that it was unwilling to read the “fundamental fairness” requirement of the Due Process Clause “as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). Instead the Court required a defendant complaining of the State’s failure to preserve evidence to show bad faith on the part of the police. 488 U.S. at 58. “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58.
Torres claims that the failure to record the interviews is per se bad faith, but cites no authority for this argument. We have held that “ ‘[s]imply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. ‘Where the appellant fails to brief an issue, that issue is waived or abandoned.” ’ ” Mid-Continent Specialists, Inc., v. Capital Homes, L.C., 279 Kan. 178, 191, 106 P.3d 483 (2005).
While some states have passed legislation to require the recording of certain interrogations, the Kansas Legislature has not. See United States v. Lewis, 355 F. Supp. 2d 870, 872 (E.D. Mich. 2005). At least two state courts have determined that the recording of interrogations is required. See Stephan v. State, 711 P.2d 1156, 1159-60 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). We decline to hold that recording is required under the United States and Kansas Constitutions.
Torres argues in the alternative that the jury should have received an instruction that it could draw an inference against the State based on the failure to record his interviews.
Torres did not request such an instruction. Accordingly, our standard of review is whether failing to give the instruction was clearly erroneous. K.S.A. 2004 Supp. 22-3414(3). Instructions are clearly erroneous if the reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the trial error had not occurred. State v. Lowe, 276 Kan. 957, 963, 80 P.3d 1156 (2003).
As stated above, law enforcement officials had no duty to record the interviews. We see no basis to conclude that the failure to give this instruction was clear error.
Issue 4: Did the district court err hy allowing evidence of Torres’ statements to law enforcement officialsP
Torres next claims that the district court erred in denying his motion to suppress his statements to law enforcement officials. More specifically, he claims they were elicited in custodial interrogations in which law enforcement failed to advise him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 358 U.S. 890 (1966). The State denies the interviews were custodial interrogations.
We addressed the identical issue in State v. James, 276 Kan. 737, 749, 79 P.3d 169 (2003), where we stated:
“Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him or her ‘in custody.’ State v. Fritschen, 247 Kan. 592, Syl. ¶ 2, 802 P.2d 558 (1990). The threshold issue is therefore whether [defendant] was in custody when the statements were made; this determination is made on a case-by-case basis according to the facts. 247 Kan. at 597, 603. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in the suspect’s position would have understood the situation. 247 Kan. 592, Syl. ¶ 2.”
The district court determined that Torres was not in custody at the time he gave the statements. In State v. James, 276 Kan. at 750, we confirmed our two-step standard for reviewing the issue of whether custody existed at the time a defendant’s statements were made drat he or she later wishes to suppress:
“[T]he standard to be applied is that the appellate court reviews the factual underpinnings of a district court’s decision that the defendant was not in custody by a substantial competent evidence standard and the ultimate legal decision drawn from those facts by a de novo standard.”
We therefore first determine if the district court’s findings in the instant case were supported by substantial competent evidence. It stated:
“Well, after having heard the evidence, the Court finds that the defendant voluntarily presented himself on both occasions to the Wichita County Sheriff s Office; that his effort there was as much to share information as to give information and to — and each party apparently gave information to the other. That on both occasions the defendant was free to leave, if he chose to. That, in fact, on the second interview both Sheriff Collins and Special Agent Robbins got up and left the room, left the door open, the defendant remained there of his own free will. The Court doesn’t see any — the Court admits that the defendant may have been under some emotional distress because — on the first occasion because of the condition of his daughter and on the second occasion because of her relatively recent funeral. But even though the defendant may have been under emotional distress, his statements were still freely and voluntarily given, that this was clearly an investigatory interrogation or interview as opposed to a custodial interrogation and interview; that Miranda warning was not necessary considering the circumstances of these two interviews. So the defendant’s motion to suppress is denied.”
At the suppression hearing, Kelly Robbins, Donald Collins, Michael Wilson, and Abel Torres each testified regarding the circumstances surrounding the two interviews.
June 27 Interview
According to the law enforcement witnesses, Robbins and Collins interviewed Torres on June 27, 2001. When Robbins arrived at the sheriffs department, Torres and his mother were waiting there, although nobody in law enforcement had asked them to appear. The interview took place in an interview room at the sheriffs department. It is a medium-sized room with a desk and three or four chairs. The door was shut for privacy, but Torres was never told that he could not leave or that he was under arrest. The interview lasted from 8:30 a.m. until 10:30 a.m. Torres never indicated that he wanted to leave and was not physically restrained. Torres was veiy upset about what was going on and cried at times. During the interview, officers spoke about Tianna’s condition, particularly her broken ribs and subdural hematoma. When the interview was completed, Torres drove away with his mother.
According to Torres, he went to the sheriff s department after a doctor advised him to speak with the sheriff. He went to find out exactly what was going on with his daughter. Torres had gone to Wichita on June 26 and had come back to Leoti that evening around 7 p.m. He testified that he stayed up almost all night, sleep ing only a few hours. When he arrived at the sheriff s department, Robbins and Collins greeted him and told him they would like him to go to the interview room so they could ask him some questions. The officers shut the door, asked Torres to sit down, and started asking him questions. Torres felt depressed, tired, and worried, and was crying at some points. He did not recall being told that he could leave. Toward the end of the interview, Torres asked if he could leave to go home and find out Tianna’s status. Torres testified that he did not feel like he could just get up and walk out because of the way he was being questioned and the attitude he was getting from the officers. He stayed because he felt obligated to provide as much information as he could.
July 6 Interview
According to law enforcement officials, the second interview occurred July 6,2001,4 days after Tianna’s funeral. The undersheriff, Randy Keeton, made contact with Torres and asked him to come in on the 6th, saying that the officers wanted to visit with him again. Torres drove himself to the interview, and his parents came in a separate car. The interview was in the same room as before, and the door was shut for privacy. The interview began around 4 p.m. and ended around 5 p.m. Torres was not told that he could not leave or that he was under arrest, and he was not physically restrained during the interview. At that time, Torres was the only person considered to be a suspect.
At various times during the interview, Torres was upset and cried. At one point, Sheriff Collins thought Torres was lying to him and said, “Let’s cut the bullshit. If you are going to lie to me, just get up and leave, go home, and we’ll just go with it.” After the interview, Torres visited with his mother, and his mother asked Robbins to visit with them about whether Torres could go back to work. Robbins told her that they would be taking the information to the county attorney, who would decide on what charges, or if charges would be filed. Robbins told Teresa that it was fine for Torres to go to work as long as they were able to contact him. Torres left with his parents after die interview.
According to Torres, the July 6 interview began with Collins accusing Torres of lying about where the 911 phone call had been made. Torres testified that the Collins then yelled at him to “cut the bullshit and stop lying” and that he should stop trying to cover himself. Torres testified that he did not feel free to leave, because at one point the door was open and Collins was pacing in front of the doorway. The door had been closed at the beginning of the interview. Torres testified that Collins never told him to leave but said that if Torres was going to he, that he would just leave. According to Torres, he felt obligated to say something at that point. He was surprised when he was told that he could go home. He was told not to leave the county.
The trial court’s factual findings described earlier are supported by the testimony of law enforcement, e.g., Robbins and Collins, and to some extent, by Torres. Their testimony constitutes substantial competent evidence.
We next consider step two in our analysis, a “de novo” review of the legal question relating to custody. See State v. James, 276 Kan. at 753. The district court concluded the interviews were not custodial interrogations that would require Miranda warnings. We observe that Torres drove himself to both interviews and appeared without law enforcement invitation for the first one. Either his mother or both parents were at the sheriff s department at the time of the interviews. He was not physically restrained at any time. He left the sheriff s department after both interviews were completed. His mother was told he could return to work. Although Collins testified that Torres was considered a suspect at the time of the July 6 interview, law enforcement’s suspicions are irrelevant if those suspicions are not disclosed to the defendant. See State v. Heath, 264 Kan. 557, 590, 957 P.2d 449 (1998).
We conclude as a matter of law based upon the evidence before the district court that the defendant was not in custody on June 27 or July 6. “More specifically, the facts cited above support die legal conclusion that a reasonable person would not have believed he was in custody.” See James, 276 Kan. at 753.
The district court did not err in admitting evidence of these interviews.
Issue 5: Did the district court err by failing to give jury instructions for the lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter?
Torres contends that the district court erred by failing to instruct for certain felony-murder lesser included offenses, i.e., reckless second-degree murder, and reckless involuntary manslaughter. Torres did not request such instructions. Accordingly, our standard of review is whether failing to give the instructions was clearly erroneous. Since its 1998 amendment, K.S.A. 22-3414(3) has been clear that this standard includes lesser included offenses:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 2004 Supp. 22-3414(3).
Our case law also provides that when dealing with the particular scenario involving felony murder, instructions on lesser included offenses are not required unless the evidence of the underlying felony is weak, inconclusive, or conflicting. State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001).
At least one of our decisions has applied both the test from Branning and the test from K.S.A. 2004 Supp. 22-3414(3) as alternative bases for analyzing and eventually denying the defendant’s argument. See State v. Calvin, 279 Kan. 193, 201, 105 P.3d 710 (2005). In the instant case, where Torres admitted to law enforcement and Tianna’s mother that he shook and threw Tianna, we simply hold that the instructions are not clearly erroneous because we are not firmly convinced that there is a real possibility the juiy would have returned a different verdict if the trial error had not occurred. See State v. Lowe, 276 Kan. 957, 963, 80 P.3d 1156 (2003). The Branning analysis is unnecessary when the lesser included instructions have not been requested.
Issue 6: Did the district court err in admitting certain photographs?
Torres argues that the district court erred in admitting certain photographs which he claims are gruesome, cumulative, and lacked probative value. At trial, Torres objected only to two of these photographs, State’s Exhibits 22 and 31.
The standard of review for the admission of these photographs requires us to first determine whedier they are relevant, i.e., probative. See State v. Kirby, 272 Kan. 1170,1186-88, 39 P.3d 1 (2002); State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842 (1987) (Photographs and videotape of homicide victims “had a reasonable tendency to prove or disprove a material fact in issue, or shed light upon a material fact.”).
State’s Exhibit 22 is a photograph of Tianna’s full body clothed in a diaper, laying on a white sheet prior to the autopsy. The photograph shows a brain pressure monitor attached to Tianna’s head, an endotracheal tube, a gastric tube, needle puncture marks, and various catheters. State’s Exhibit 31 is a photograph taken during the autopsy showing Tianna’s scalp reflected forward and backward. None of Tianna’s facial features or other body parts are visible in the photograph. Dr. Dudley explained that Exhibit 31 showed a large area of hemorrhage under the scalp and on the bone, indicating a deeper injury than just a surface bruise.
The two photographs were used to either prove the manner of death, or to explain medical testimony, or both. They are relevant and admissible. See State v. Bell, 273 Kan. 49, 52-53, 41 P.3d 783 (2002) (Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible.); State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001) (Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible, including photographs which aid a pathologist in explaining the cause of death.).
Torres also argues that the photographs are cumulative and overly gruesome, i.e., prejudicial. Our standard of review of these claims is abuse of discretion. State v. Parker, 277 Kan. 838, 847, 89 P.3d 622 (2004) (An abuse of discretion has occurred when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for Are purpose of prejudice.), The admission of photographs in a murder case has rarely been held to be an abuse of discretion. State v. Deal, 271 Kan. at 493.
We have reviewed the two photographs and find no abuse of discretion in their admission into evidence.
As to the other photographs, no objection was made at trial to their admission. As such, the issue of their admission was not preserved on appeal. K.S.A. 60-404; State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001).
Issue 7: Did the district court err in denying a motion for mistrial based upon allegations of prosecutorial misconduct?
Torres next claims that the district court erred in denying his motion for mistrial based upon an accusation of prosecutorial misconduct for tampering with witness Susan Rodriguez. Denials of motions for mistrial are reviewed for abuse of discretion. State v. Daniels, 278 Kan. 53, 66, 91 P.3d 1147 (2004). The burden of proof is on the party alleging the discretion is abused. State v. Horn, 278 Kan. 24, Syl. ¶ 5, 91 P.3d 517 (2004).
Torres’ attorney, Lucille Douglass, spoke with the district court about possible threats made to Susan by the prosecutor, Wade Dixon. During the trial, Torres’ attorney came into contact with Susan Rodriguez at Teresa Torres’ house. The attorney asked Susan how she was doing. Susan said in a very angry outburst, “I’m tired of courts, I’m tired of being here, I’m tired of not being able to talk to Abel. And you got me subpoenaed so I have to do it again.” Susan said, “[Tjhey told me it was up to me to send Abel, that if I didn’t say what they wanted they would take my baby away and send my sister to prison. . . . [Tjhat’s why I testified differently this time [at the trial as opposed to the preliminary hearing].” Torres’ attorney said that Susan identified the prosecutor as the person making the threat.
Torres requested a mistrial based on this information. The district court raised the possibility of bringing Susan to court, putting her under oath, and hearing what she said. Torres’ attorney did not believe Susan would say anything with the prosecutor there, out of fear that her son would be taken away and her sister sent to prison if she did not testify the way the State wanted her to testify.
The prosecutor told the court that he believed the perceived threats were from a conversation he had with Susan where he told her that it would be difficult to convince the jury that what the State alleged against Abel was true unless Susan believed that it was true, and he needed to know whether Susan believed it was true.
The court took a recess to consider the issue, and then stated:
“I had a chance to think about the allegations that Ms. Rodriguez has told Ms. Douglass about, and it appears to me that if Ms. Douglass has Ms. Rodriguez under subpoena, she can ask her any question she wants as long as it is relevant to the case. And the conversation that Ms. Rodriguez had with Miss Douglass would certainly be relevant with regard to the facts of the case. I don’t think it’s a mistrial situation as much as it is the credibility of a witness, so the motion for a mistrial is denied.”
The court also allowed a social worker to contact Susan about her rights as a parent, though it is not clear from the record whether the social worker was located or spoke to Susan.
At trial, the defense called Susan Rodriguez as a witness and addressed her testimony given at the preliminaiy hearing:
“Q. You testified on Tuesday [during the State’s case-in-chief] that Abel — that your impression was that Abel violently shook the child. Do you remember that?
“A. Yes, out of frustration.
“Q. Was that testimony different from the way you testified to previously?
“A. Not really. I just didn’t use more direct —direct answer to your questions. “Q. Susan, were you worried about testifying?
“A. Yes.
“Q. Did you feel like you were placing your sister or your daughter in danger — I’m sorry, your sister or your son in danger?
“A. My son.
“Q. And why did you feel like you were placing your son in danger?
“A. Because he’s all I have.
“Q. Okay. Did you think — did that have any impact on how you testified?
'A. I would say it was questioned, but no.
“Q. Were you afraid that something would happen to your son because of your testimony?
“A. No.
“Q. Do you remember talking to me last night?
“A. Yes.
“Q. Do you remember what you told me last night?
“A. Yes.
“Q. Is what you are saying here today the same thing you told me last night?
“A. I’m concerned is what I remember talking with you about.
“Q. You’re concerned about what you are talking to me about?
“A. No, I’m concerned for my son.
“Q. You’re concerned for your son?
“A. Yes.”
The defense had no further questions for Susan.
After the jury had returned a guilty verdict, Torres moved for a new trial based on the district court’s failure to conduct a hearing on whether improper prosecutorial statements had been made to Susan Rodriguez and if such statements had anything to do with her testimony at trial. The court denied the motion, stating:
“The trial lasted about a week. And the defense team had subpoenaed the witness in question, Susan Rodriguez, to testify on their behalf after she had testified on behalf of the State.
“I can’t remember exactly when it was in the trial, but I think it was after the State rested, that Ms. Douglass, one of the defense team attorneys, came to us and asked that we have an in camera session with regard to some statements that had been made to her and, as I recall, in the presence of other people the night before the defense was to put on their case.
“And my recollection is that Ms. Douglass said that Ms. Rodriguez came to where she was and that she was hysterical. That she made statements that . . . indicated to Ms. Douglass that she had been threatened by Mr. Dixon that her children would be removed from her if she . . . did not testify the way that Mr. Dixon had told her to testify.
“[A]t any time during the trial, especially during a week-long trial, the parties have an opportunity to interview any witnesses they choose to interview, if those witnesses will allow themselves to be interviewed. And that is essentially what happened in this case.
“The Court decided at that time that an in camera examination, and I don’t recall if I was asked or not, but if I had been asked I would have decided that an in camera examination of a current witness would have been inappropriate since the defense team had an opportunity to visit with that witness on the stand in open court. And that’s exactly what happened.
“As I recall, the subject of that evening conversation was brought up when Mrs. Rodriguez was on the stand. It wasn’t pursued particularly hard because Mrs. Rodriguez at the time denied that any threats had been made to her, or that she had had that conversation with Ms. Douglass.
“I suppose ... in retrospect that Ms. Douglass could have called whatever witnesses were present at the time those statements had been made, and she chose not to do so. The subject wasn’t pursued particularly hard. Certainly had Ms. Douglass asked for Ms. Rodriguez to be deemed a hostile witness, the Court probably would have done so.
“I can assure you that had Ms. Rodriguez testified the same way that Ms. Douglass thought she was going to testify, the Court would have taken serious steps to investigate the matter with regard to prosecutorial misconduct.
“But other than Ms. Douglass’s statements, there was nothing from the stand under oath that would lead the Court to believe that any misconduct had taken place. Or that the testimony of Ms. Rodriguez was perjured in any way.”
Torres fails to cite to any relevant legal authority showing that the district court had a duty to do anything beyond what it did. We have held that “ ‘[sjimply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authoriiy or in the face of contrary authority, is akin to failing to brief an issue. “Where the appellant fails to brief an issue, that issue is waived or abandoned.” ’ ” Mid-Continent Specialists, Inc., v. Capital Homes, 279 Kan. 178, 191, 106 P.3d 483 (2005). As such, Torres fails to show that the district court abused its discretion in denying the motion for a mistrial or in not conducting either an in camera meeting or an evidentiary hearing on the allegations of prosecutorial misconduct.
Issue 8: Did the district court err in allowing the jury to see demonstrative illustrations on “shaken impact” and “shaken baby” syndromeP
Torres next complains the district court erred in allowing six medical illustrations as demonstrative evidence. His counsel timely objected to these illustrations at trial. The district court ruled that they could be used to help explain testimony, but they would not be admitted into evidence.
Dr. Dudley then explained the illustrations. She testified that the illustrations were from textbooks and were artistic renditions showing what occurs with the mechanism of shaken baby, the blood supply over the surface of the brain, the layers of the brain, the locations where fluid would collect between the layers of the brain with these injuries, and the inside of the eye with retinal hemorrhages. She stated, “So this will help me to explain to you the mechanism of what happens with shaken baby and shaken impact syndrome, and also the layers that are involved when I then show you the actual photographs that were taken at autopsy of where this injury has occurred in the brain.” She also testified that they are a fair and accurate representation of what is typically or normally found in examination of the human body.
In Van Welden v. Ramsay’s Inc., 199 Kan. 417, 430 P.2d 298 (1967), this court affirmed the admission of four sketches of a thoracic vertebra introduced through the plaintiff s physician and surgeon. This court stated:
“We see no error in allowing the physician to use sketches of the thoracic vertebra to illustrate appellee’s injuiy where they accurately portrayed that which was competent to describe in words. We see no reason to distinguish between medical illustrations, and charts and drawings to establish other physical facts. If die sketch be a substantially correct reproduction of the injured part of the anatomy it should be admissible within the trial court’s discretion. The physician testified:
“ ‘. . .1 compared the x-rays and the sketches and they do correspond to the illustrations as shown in the x-ray.’ ” 199 Kan. at 419.
The same can be said of the six illustrations here. Although they were not illustrations specifically of Tianna, they were fair and accurate representations of the human body. Because the doctor used the illustrations in conjunction with actual photographs of Tianna’s brain to show where the injury occurred, they were useful to explain Dr. Dudley’s medical testimony regarding shaken baby and shaken impact syndrome.
Because the Van Welden court concluded no error was made in the admission of the demonstrative evidence, a fortiorari we conclude the mere use of the demonstrative evidence in the instant case was not error. See Nelson v. Hardesty, 205 Kan. 112, 116, 468 P.2d 173 (1970) (use of drawings shown to be reasonably accurate are acceptable to aiding a jury to visualize objects relevant to the action); see also State v. Hood, 18 Kan. App. 2d 1, 3, 846 P.2d 255 (1993) (approving use of anatomically correct doll as aid to jury in trial of sex crimes of young victims).
Issue 9: Did the district court err in allowing the State to call six expert witnessesP
Torres contends the district court erred in allowing the State to call six expert witnesses while he only had one. He argues that the sheer number of the State’s witnesses overpowered his. At trial, however, he only objected to Dr. Melhorn’s testimony as cumulative, and the district court overruled the objection.
Without Torres’ objection at the district court to five of the experts, he has failed to preserve the issue for appeal. K.S.A. 60-404; See State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001).
As for Dr. Melhom, whether otherwise relevant evidence is cumulative is a matter of discretion for the trial court. State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001). The burden of proof is on the party alleging the discretion is abused. State v. Horn, 278 Kan. 24, Syl. ¶ 5, 91 P.3d 517 (2004).
Several medical personnel testified at trial. Dr. David Thetford was the physician who treated Tianna at the Wichita County Hospital in Leoti. Dr. Liong is the radiologist at St. Catherine’s Hospital. Dr. James Zauche is a pediatrician who treated Tianna in Garden City. Dr. Lindall Smith treated Tianna at the intensive care unit at Wesley Medical Center in Wichita. Dr. Debra Desilet-Dobbs is a pediatric radiologist who testified about the films taken at Wesley Medical Center. Dr. Mary Dudley performed the autopsy on Tianna. Each of these medical personnel performed separate medical procedures on Tianna and had first-hand diagnostic knowledge of her injuries. Many of them, as part of Tianna’s treatment, formed medical opinions as to the cause of Tianna’s injuries.
Dr. Katherine Melhom is a pediatrician and faculty member at the University of Kansas School of Medicine in Wichita and was consulted as a physician on the care team when Tianna was admitted to Wesley Medical Center. She interviewed Susan and examined Tianna. Her testimony corroborated the other medical testimony regarding Tianna’s injuries, particularly the retinal hemorrhages. The admission of this testimony, while cumulative in part, was not an abuse of the trial court’s discretion.
Issue 10: Did the district court err by failing to exclude part of the testimony of Dr. Mary Dudley and thereby violate Torres’ constitutional right to a fair trial?
Torres also claims the district court erred by allowing Dr. Dudley to testify in rebuttal to defense expert Dr. Gilmartin that Tianna’s death was a homicide and that her death was a case ex ample for shaken baby or shaken impact syndrome. He alleges this violated his constitutional right to a fair trial.
We have defined our standard as follows:
“Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of tlie trial. State v. McClanahan, 259 Kan. 86, Syl. ¶ 4, 910 P.2d 193 (1996).” State v. Smallwood, 264 Kan. 69, 81, 955 P.2d 1209 (1998).
As we stated in State v. Struzik, 269 Kan. 95, 99, 5 P.3d 502 (2000):
“Although an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury.”
Torres specifically contends that several of Dr. Dudley’s statements went to the weight and credibility of the evidence, thereby invading the province of the jury.
First, Dr. Dudley testified, “And the cause of death is listed as shaken impact syndrome, and the manner of death is homicide.” This court has held that an expert’s testimony that a child died as a result of child abuse did not invade the province of the jury, when the expert does not testify as to the ultimate question of the defendant’s guilt or innocence. See State v. Struzik, 269 Kan. at 101; State v. Smallwood, 264 Kan. at 81. Similarly, opining that death was caused by shaken impact syndrome, a type of child abuse, does not invade the jury’s province. Moreover, describing Tianna’s manner of death as “homicide” — defined in Black’s Law Dictionary 751 (8th ed. 2004) simply as “[t]he killing of a person by another” — does not expand our approved descriptions in Struzik and Small-wood that a child died as a result of abuse because that clearly implies death at the hands of another. Dr. Dudley’s statement did not go to tire ultimate question of Torres’ guilt or innocence.
Second, Dr. Dudley testified:
“Well, basically this is my diagnosis, you know, my training and experience in this field of forensic pathology, with a specialty in child abuse cases and a special interest in shaken baby syndrome, really makes this a textbook case. This has every feature of a shaken impact syndrome including the impact site of the head injury with the fracture. It has the bruises that the child had, the linear skull fracture showing the impact, the separation of the sutures in the brain showing that there was swelling so severe that the brain caused the sutures to separate again, the extreme brain swelling with herniation, the bilateral retinal and optic nerve sheath hemorrhages, the posterior rib fractures, the severe injury to the brain.
“Everything — if I had to pick out a case example for shaken baby or shaken impact syndrome, it would be this case. And my diagnosis is shaken impact syndrome, which I made at the time I did the autopsy, and it stands to be that today.” (Emphasis added.)
Although Torres focuses only on the last paragraph, the entire passage shows that Dr. Dudley based her conclusion on specific medical findings. Her training and experience in the field of child abuse and shaken baby syndrome qualify her to make such findings and conclusion. Additionally, she already had testified that the cause of death was shaken impact syndrome. Her opining that the death was a “textbook case” or “case example” for shaken impact or shaken impact syndrome merely reinforced her testimony rebutting the defense expert Dr. Gilmartin who testified there was no evidence Tianna had been shaken. Her testimony did not go to the ultimate question of Torres’ guilt or innocence.
Even if the testimony was inadmissible, the error did not rise to the level of denying Torres’ constitutional right to a fair trial. It had little, if any, likelihood of having changed the result of the trial given the large amount of evidence supporting the State’s case. See State v. Smallwood, 264 Kan. at 80-81.
Issue 11: Did the cumulative effect of any errors deprive Torres of his right to a fair trialP
Finally, Torres argues that the cumulative effect of the errors deprived him of his right to a fair trial. Having reviewed the 10 previous issues, and finding no error, it follows that there is no cumulative error. See State v. Parker, 277 Kan. 838, 848, 89 P.3d 622 (2004).
Affirmed.
Gernon, J., not participating.
Larson, S.J., assigned.
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The opinion was delivered by
Luckert, J.:
This case determines a narrow question of first impression: whether ownership of intellectual property rights is a subject preempted by state or federal law and, therefore, not mandatorily negotiable under the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321, et seq. The issue arises from a complaint filed with the Public Employee Relations Board (PERB) by the Pittsburg State University/Kansas National Education Association (KNEA), a recognized public employee organization representing some of the faculty of Pittsburg State University (PSU). In the complaint, KNEA alleges that the Kansas Board of Regents/Pittsburg State University (KBR) committed a prohibited practice under PEERA when it did not meet and confer with KNEA before adopting a policy regarding the ownership of intellectual property. PERB determined there was no obligation to meet and confer because federal and state law preempted the subject. The district court reversed this conclusion, but the Court of Appeals agreed with PERB and reversed the district court in Pittsburg State Univ. v. Kansas Bd. of Regents, No. 91,305, unpublished opinion filed December 10, 2004 (PSU/KNEA).
We reverse the determination of the Court of Appeals, affirm the district court’s holding on this issue, and conclude that neither state nor federal law preempts the subject of ownership of intellectual property from being included within the scope of a memorandum of understanding. Therefore, the subject of the ownership of intellectual property is not “preempted” within the meaning of K.S.A. 75-4330(a)(1), the applicable provision of PEERA.
Resolution of tins issue does not determine the overarching question raised in this case of whether a public employer must meet and confer with a recognized public employee organization regarding ownership of intellectual property rights. In order to resolve that question, two additional issues, also of first impression, must be decided: (1) whether the subject of ownership of intellec tual property rights is a condition of employment and, therefore, mandatorily negotiable under PEERA and (2) whether the subject of ownership of intellectual property falls within the management prerogative exception of K.S.A. 75-4330(a)(3) and, therefore, is not mandatorily negotiable under PEERA. PERB did not resolve these issues, resting its decision solely upon the conclusion that the subject of the ownership of intellectual property was preempted from negotiation by state and federal law. We hold that the district court erred in resolving these issues without the benefit of PERB having made such findings and remand the case for additional findings.
Factual Background
The dispute giving rise to KNEA’s complaint began in 1997 when KBR proposed a policy which, if adopted, would have dictated that KBR retained ownership and control of any intellectual property created by faculty at PSU. KNEA, the recognized employee organization of certain PSU faculty, rejected this policy as unacceptable, proposed its own policy, and insisted that the parties negotiate the matter. KBR responded by stating that it was not required under PEERA to negotiate the policy because the subject of intellectual property rights was not a condition of employment, was preempted by federal and state law, and was a management prerogative.
KNEA filed its complaint with PERB on March 13,1998. While the complaint was pending, KBR formally adopted a different intellectual property policy without meeting and conferring with KNEA. This policy gave some intellectual property rights to employees of KBR’s institutions. KNEA amended its complaint to allege that KBR’s unilateral adoption of this policy was also a prohibited practice.
Overview of PEERA
In order to discuss PERB’s resolution of the complaint and KNEA’s arguments regarding the PERB’s and lower courts’ decisions, it is necessary to first examine those statutory provisions of PEERA which are relevant to KNEA’s complaint.
The essence of the complaint is that KBR had an obligation to meet and confer before adopting a policy regarding ownership of intellectual property. PEERA is a hybrid labor relations act which falls “somewhere between a pure ‘meet and confer’ act and a classic ‘collective bargaining’ act.” State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 281-82, 894 P.2d 777 (1995). PEERA imposes on public employers and recognized public employee organizations the obligation “to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law.” K.S.A. 75-4321(b); Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 804-05, 667 P.2d 306 (1983) (Pittsburg State).
More specifically, under PEERA, public employers are required to “meet and confer in good faith” with recognized public employee organizations “in the determination of conditions of employment.” K.S.A. 75-4327(b).
A nonexclusive list of “conditions of employment” — the matters about which there must be negotiation — is contained in K.S.A. 75-4322(t): The list includes “salaries, wages, hours of work, vacation allowances, sick and injury leave, number of holidays, retirement benefits, insurance benefits, prepaid legal service benefits, wearing apparel, premium pay for overtime, shift differential pay, jury duty and grievance procedures.” In Pittsburg State, 233 Kan. 801, a case relating to a previous PEERA dispute between the parties in this case, this court concluded that the legislature did not intend that the “laundry list of conditions of employment as set forth in K.S.A. 75-4322(t) be viewed narrowly with the object of limiting and restricting the subjects for discussion between employer and employee. To the contrary, the legislature targets all subjects relating to conditions of employment.” 233 Kan. at 819. The court examined several subjects to see if the “item [was] significantly related to an express condition of employment” of PSU faculty. 233 Kan. at 816. The court held that budget inputs for salary generation and allocation; out of state travel funds; the criteria, procedures, or methods by which candidates for promotion are identified; the criteria, procedures, or methods for screening candidates for summer employment; tenure; retrenchment procedures; and personnel files were significantly related to one or more of the statutorily listed conditions of employment and were mandatorily negotiable. 233 Kan. at 826-28.
If a subject is a condition of employment, then the public employer must meet with a recognized public employee organization and confer in good faith. K.S.A. 75-4327. To “meet and confer in good faith” requires the free exchange of “information, opinions and proposals to endeavor to reach agreement on conditions of employment.” K.S.A. 75-4322(m). The refusal to meet and confer regarding conditions of employment is a “prohibited practice.” K.S.A. 75-4333(b)(5).
Additionally, K.S.A. 75-4327, the statute which imposes the obligation to meet and confer, provides that a public employer “may enter into a memorandum of agreement” with a recognized employee organization. K.S.A. 75-4327(b). The scope of such a memorandum of agreement is defined in K.S.A. 75-4330 and “may extend to all matters relating to conditions of employment, except proposals relating to (1) any subject preempted by federal or state law . . .; (2) public employee rights defined in K.S.A. 75-4324 . . .; [or] (3) public employer rights defined in K.S.A. 75-4326 . . . .” K.S.A. 75-4330(a); see K.S.A. 75-4322(n) (defining “memorandum of agreement”). The first exception, which we will refer to as the preemption exception, is the primary focus of this decision. Beyond stating the exception, PEERA provides little guidance as to its application; the term “preempted” is not defined. The second exception, relating to public employee rights, is not implicated by any arguments made by the parties. The third exception, relating to the rights of public employers, is asserted by KBR as being applicable to the subject of ownership of intellectual property. The exception is sometimes referred to as management rights or managerial prerogatives, see Pittsburg State, 233 Kan. at 816, 819. K.S.A. 75-4326 defines this “managerial” exception.
Summarizing these provisions in the context of this case, these provisions mean that KBR, a public employer, is required to meet and confer with KNEA, a recognized public employee organization, only if ownership of intellectual property is a condition of employment. If the ownership of intellectual property is a condition of employment, the subject may be included in a memorandum of agreement if no exception applies, i.e., if ownership of intellectual property is not preempted by state or federal law, is not a right of a public employee, or is not a right of a public employer.
From the time KBR proposed the intellectual property policy and KNEA objected thereto, KBR has argued that ownership of intellectual property is not a condition of employment and that, even if it is, it could not be included as a subject in a memorandum of agreement because the subject is preempted by statute and falls within the rights of the public employer. Consequently, according to KBR it had no obligation to meet and confer with KNEA and, therefore, it did not commit a prohibited practice.
The Hearing Officers Initial Order
The hearing officer agreed with KBR, concluding that KBR did not commit a prohibited practice. That determination was based upon a finding that the subject of ownership of intellectual property was preempted by state and federal law. In reaching this determination, the hearing officer, after conducting a formal hearing, made the following findings of fact:
“1. The Kansas Board of Regents is a constitutional agency of the state of Kansas with the authority to supervise and control institutions of higher education within the state.
“2. Pittsburg State University is a member institution of the Kansas State Board of Regents.
“3. Kansas Board of Regents/Pittsburg State University is the employer of college professors at Pittsburg State University.
“4. Professors at Pittsburg State University have three major responsibilities: teaching, scholarship, and creative endeavor and service.
“5. Pittsburg State University provides its professors with office space, equipment, research facilities, supplies, and secretarial help.
“6. Among other responsibilities, Pittsburg State University professors conduct research, write scholarly articles, publish scholarly articles, create songs or artwork and other forms of intellectual property.
“7. Professors who publish scholarly works receive better performance evaluations and receive a higher level of compensation from the employer.
“8. Professors’ promotions are based on production of books and articles and on presentation of information at conferences.”
Although the hearing officer s findings of fact seem to relate to whether intellectual property rights are a condition of employment, he declined to decide that question and instead moved forward “on the assumption that the subject of intellectual property rights intimately and directly affects the work and welfare of the public employees at issue here.” The hearing officer also declined to decide the application of the exception regarding the public employer’s rights, which he labeled as “inherent managerial prerogatives.” Instead, the hearing officer concluded: “[I]t is necessaiy to determine first whether any constitutional or statutory provisions relating to the subject sought to be negotiated would remove it from the area of mandatoiy negotiability” and then found that both federal and state laws were preemptive. Regarding federal law, the hearing officer focused solely upon copyright law and found that university employees
“are expected to produce intellectual property in the scope of their employment. Intellectual property thus created falls under the work for hire doctrine, and by operation of federal law, belongs to the employer, Kansas Board of Regents/Pitts-burg State University. The subject of intellectual property rights is thus preempted by operation of federal law.”
The hearing officer noted, although federal copyright law expressly provides the ownership of intellectual property rights could be changed by agreement of the parties, that “does not mean that the subject is not preempted, merely that the preemptive result may be changed.”
As an additional ground for finding no prohibited practice by KBR, the hearing officer found that state law, specifically K.S.A. 76-718, mandates that any funds received by a state educational institution or its employees from intellectual property be dedicated solely to the use of that institution. Therefore, the hearing officer concluded that the disposition of funds received from intellectual property was “fixed by statute” and not a mandatorily negotiable condition of employment pursuant to K.S.A. 75-4322(t).
PERB’s Final Order
On review, PERB upheld the hearing officer s initial order and decision. One member dissented. The majority did not expand upon the analysis of the hearing officer, adopting the hearing officer s order “without modification.” The dissenting member stated that he did not agree that either tire federal or state statute “preempts all subjects that might be related to the subject of intellectual property.”
The District Court’s Decision
The district court reversed. First, the district court stated: “By applying the Presiding Officer s findings of fact to the precedential law of Pittsburg State [233 Kan. 801], this Court concludes that intellectual property constitutes a condition of employment.” Second, the district court concluded that the requirement to “meet and confer on the subject of intellectual property does not violate K.S.A. 75-4326 or in anyway impermissibly effect any so called ‘inherent managerial policy' ” Third, the district court concluded the subject was not preempted. Discussing the state statute which the hearing officer had found to be preemptive, K.S.A. 76-718, the district court concluded it was “inapposite.” Regarding federal law, the district court concluded: (a) “The gambit of intellectual property is not, in toto, preempted by federal law” and (b) the hearing officer relied solely upon the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (2000), but that Act does not cover patents or trademarks. The district court concluded that KBR committed a prohibited practice when it refused to negotiate.
The Court of Appeals’ Decision
In an unpublished decision, the Court of Appeals reversed the district court and reinstated the decision of PERB, holding that “requiring mandatory negotiations concerning intellectual property is preempted by federal copyright law.” PSU/KNEA, slip op. at 6. The rationale for this decision will be discussed in more detail. The Court of Appeals did not address any other portions of the district court decision, including the discussion of whether K.S.A. 76-718 preempted the subject.
This court granted KNEA’s petition for review.
Standard of Review
Judicial review of a PERB decision on a prohibited practice complaint is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. See K.S.A. 75-4334(c); State Dept. of Administration, 257 Kan. at 281.
The KJRA limits appellate review of an agency action by providing, in relevant part:
“(c) The court shall grant relief only if it determines any one or more of the following:
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621.
The application of these provisions to PERB orders was discussed in Pittsburg State:
“Neither the district court nor this court can weigh conflicts in the evidence and substitute its judgment for that of the Board. [Citations omitted.] ....
“The PERB orders in this case are partly factual determinations, which are subject to the review stated above, and partly determinations of law, which involve a different standard of review. ... ‘In reviewing questions of law, the trial court may substitute its judgment for that of the agency, although ordinarily the court will give deference to the agency’s interpretation of the law. [Citation omitted.]’ ” 233 Kan. at 808-09.
The principal issue raised for our review is the determination that the subject of ownership of intellectual property was preempted by state or federal laws. PERB’s operative interpretation of the meaning of PEERA’s preemption exception is entitled to deference. However, as KNEA correctly points out, PERB is not entitled to deference in its interpretation of other state or federal statutes, including those regarding intellectual property. See State Dept. of Administration, 257 Kan. at 281.
These principles regarding judicial review apply equally to the district court’s, the Court of Appeals’ and our review of the PERB decision. That review requires initial analysis of: (1) interpretation of the preemption exception; (2) application of federal copyright law to this exception; (3) application of other forms of federal intellectual property law to the exception; and (4) application of K.S.A. 76-718 to the exception.
Interpretation of the Preemption Exception
The Court of Appeals’ and PERB’s interpretations of the preemption exception were quite different. The Court of Appeals applied the term “preempt” in the traditional sense of federal preemption of state law, noting: “As a general rule, federal copyright law preempts state law claims which fall within its general scope. See 17 U.S.C. § 301(a) (2000).” PSU/KNEA, slip op. at 5. The Court of Appeals then utilized a two-part test for determining whether a state statute is preempted by federal copyright law: “To determine whether a statute is preempted by federal copyright law, we look at two factors. First, whether the statute falls within the subject matter of the copyright law and, if so, whether the statute conflicts with the federal law. [Citations omitted.]” PSU/KNEA, slip op. at 5.
However, the issue is not whether federal legislation occupies the field to the exclusion of a state statute. Such an interpretation is inconsistent with the language and purpose of PEERA. K.S.A. 75-4330 speaks in terms of whether a subject of a memorandum of agreement is preempted, not whether a state statute is preempted by federal law. In other words, the appropriate inquiry is whether federal law prevents the parties from negotiating regarding ownership of intellectual property rights and entering into a memorandum of agreement which includes that subject. If the freedom to contract remains, the subject of ownership of intellectual property rights is not preempted. See Wright v. Board of Educ. of City of East Orange, 99 N.J. 112, 119, 491 A.2d 644 (1985) (mere existence of statute or regulation relating to given term or condition of employment does not automatically preclude negotiation; negotiation is preempted only if the statute or regulation speaks in the imperative and leaves nothing to the discretion of the public employer).
The Court of Appeals recognized that federal copyright law allows the parties to contract regarding ownership. Despite this, the Court of Appeals stated that federal copyright law would conflict with a requirement that the parties negotiate regarding the subject of ownership of intellectual property. Similarly, PERB, although it did not focus on the traditional preemption of federal law over state law or claims, concluded that negotiation cannot be required because federal law establishes a preemptive ownership right.
Both the Court of Appeals’ conclusion and PERB’s analysis, which erroneously focus upon only one form of intellectual property (copyright), are contrary to the language and purposes of PEERA and are incorrect applications of federal copyright law. To explain, it is necessary to first examine some general principles of copyright law and the work-for-hire doctrine.
Copyright Law
Under tire Copyright Act of 1976, copyright ownership “vests initially in the author or authors of the work.” 17 U.S.C. § 201(a) (2000). However, where a work is made for hire: “[T]he employer or other person for whom the work was prepared is considered the author . . . and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” (Emphasis added.) 17 U.S.C. § 201(b) (2000). This is known as the work-for-hire doctrine.
The hearing officer stated that 17 U.S.C. § 201(b) created a “preemptive result.” In reaching this conclusion, the hearing officer looked to a dictionary definition of “preempt” as meaning: “ ‘to gain possession of by prior right or opportunity.’ The American Heritage Dictionary, p. 1032 (1976).” Applying this definition, he concluded: “The public employer gains possession of intellectual property rights by prior right or opportunity, that is, by operation of the federal work for hire doctrine.” However, 17 U.S.C. § 201(b) does not create a right similar to a shareholder’s privilege or pre emptive right to purchase newly issued stock — the definition imposed by the hearing officer. Rather, 17 U.S.C. § 201(b) creates a presumptive result. See generally Easter Seal Soc. v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987) (discussing historical evolution of presumptions in work-for-hire context). As Washburn Law Professor James B. Wadley and coauthor JoLynn Brown explain:
“This provision [17 U.S.C. § 201(b)] suggests three things worthy of note. First, it is apparent that the work-for-hire doctrine embodies only a presumption regarding the ownership of copyright rights and, as such, particularly allows the parties an opportunity to conform the law to their expectations, simply by agreeing to a particular copyright ownership outcome. Second, it is apparent that the law does not feel particularly strongly about the presumption since the ownership provision vesting the copyright in the employer operates more as a default provision, operating unless the parties agree otherwise. Finally, the opportunity to avoid the impact of the presumption arises only when the presumption itself is invoked. That is, even if the works at issue are produced within an employment relationship but are not sufficiently considered die objects of that relationship to be considered works for hire, the employee should not bear the burden of requiring a writing to preserve his or her copyright claim to such works.” Wadley & Brown, Working Between the Lines of Reid: Teachers, Copyrights, Work-For-Hire and a New Washburn University Policy, 38 Washburn L.J. 385, 421 (1999).
As this commentary indicates, the plain language of the statute reflects that Congress clearly contemplated that parties could negotiate ownership of a copyright. In other words, 17 U.S.C. § 201(b) allows the subject of copyright ownership to be covered within a memorandum of understanding or any other written agreement.
At most, 17 U.S.C. § 201(b) gives the bargaining power to KBR in those situations where the work-for-hire doctrine applies to ownership of a copyright. However, that does not foreclose negotiation regarding ownership. In this respect, we disagree with the Court of Appeals’ determination that to require intellectual property rights issues to be mandatorily negotiable would conflict with federal copyright law. The Court of Appeals reasoned as follows:
“The copyright law clearly allows an employer in a work for hire’ situation to negotiate with employees concerning the rights to intellectual property, but the federal law does not require an ‘author’ to negotiate away the rights. Interpreting the Kansas statute to require a [KBR] university to negotiate away rights to cop yrighted material would conflict with the federal law provisions which state in a work-for-hire situation, the employer is considered to be the author and owner of the material.” PSU/KNEA, slip op. at 5-6.
The Court of Appeals incorrectly concluded that requiring KBR to “meet and confer” is the equivalent of requiring KBR to “negotiate away rights” to copyrighted materials. See PSU/KNEA, slip op. at 5. In fact, an employer is never required to “negotiate away rights” under PEERA:
“PEERA imposes no obligation on the employer to agree to the employees’ demands. However, PEERA prevents public employers that come under its provisions from simply acting unilaterally in determining conditions of employment. Although the governing body of the public employer ultimately can dictate any mandatory subject of bargaining, it can do so only after the public employer has negotiated in good faith, reached impasse in good faith, and participated in impasse-resolution procedures such as fact-finding and mediation. See K.S.A. 75-4332.” State Dept. of Administration, 257 Kan. at 287.
Furthermore, rather than negotiating away rights, KBR and KNEA would be negotiating consistent with the parties’ expectations. This may mean that KBR will maintain ownership rights. However, it may also be that KBR will determine it does not always have ownership rights or that it is willing to contractually grant those rights to the faculty. For example, the policy finally adopted by KBR did give some intellectual property rights to employees of KBR’s institutions.
17 U.S.C. § 201(b) does not prevent the parties from entering into a memorandum of agreement regarding the subject of intellectual property rights; it contemplates that there can be negotiation of the subject.
Work-for-hire Doctrine and a Teacher Exception
Additionally, KNEA argues that both PERB and the Court of Appeals erred in assuming that tire work-for-hire doctrine applies to any and all intellectual property created by PSU faculty simply because those faculty are employees of PSU. Works can be produced within an employment relationship which “are not sufficiently considered the objects of that relationship to be considered works for hire.” Wadley & Brown, 38 Washburn L.J. at 421.
KNEA in its supplemental brief extends this argument and contends that all faculty works are excluded from the work-for-hire doctrine under a teacher exception. Therefore, according to the KNEA, federal law would give ownership of the copyright to the teachers.
The American Association of University Professors (AAUP) filed an amicus brief generally supporting the position of KNEA and arguing that faculty scholarly works are not considered works for hire under federal copyright law. The AAUP also points out that its own policy, academic practice, and preservation of academic freedom require that professors own the copyrights to their own works. However, even the AAUP policy recognizes that some academic works properly fall within the category of works for hire.
A teacher exception to the work-for-hire doctrine has been discussed by courts. See Williams v. Weisser, 273 Cal. App. 2d 726, 78 Cal. Rptr. 542 (1969). However, a teacher exception to the work-for-hire doctrine was not incorporated into the Copyright Act when it was revised in 1976. See 17 U.S.C. § 201. This caused confusion as to whether the teacher exception continued to exist. The Seventh Circuit Court of Appeals decided two cases which seemed to continue the exception on the basis of custom: Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir. 1988), abrogated on other grounds Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406-09, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990), and Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987).
KBR argues that because both Hays and Weinstein were decided prior to the United States Supreme Court decision in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989), they “have dubious precedential value.” Reid is the benchmark case interpreting the work-for-hire provisions of the 1976 Copyright Act. In Reid, the United States Supreme Court considered whether the work of an independent contractor who created a sculpture was a work for hire under the Copyright Act. The Court noted that 17 U.S.C. § 101 (2000) defines a “work made for hire” as:
“(1) a work prepared by an employee within the scope of his or her employment; or
“(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”
The Court interpreted this definition as follows: “The structure of § 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors, and . . . the classification of a particular hired party should be made with reference to agency law.” Reid, 490 U.S. at 742-43. Because Reid was an independent contractor, 17 U.S.C. § 101 “work made for hire” (2) applied, and, in order for the work to be considered work for hire, his work had to fall within one of the nine enumerated categories of 17 U.S.C. § 101 “work made for hire” (2) and there had to be an express writing stating that the work was one made for hire. Because these requirements were not met, the Court ruled that Reid, rather than his employer, owned the copyright to his work. 490 U.S. at 753.
With regard to works prepared by employees, the Reid Court noted that the term “scope of employment,” as used in 17 U.S.C. § 101 “work made for hire” (1), is a widely used term of art in agency law. 490 U.S. at 740. Since Reid, courts have relied on the Restatement (Second) of Agency § 228 (1957) to determine whether a work is prepared in the scope of employment. See, e.g., Avtec Systems, Inc. v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994). Under the Restatement (Second) of Agency § 228(1), an employee’s conduct falls within the scope of employment “only if: (a) it is of the land he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master.” An employee’s conduct does not fall within the scope of employment if “it is different in land from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Restatement (Second) of Agency § 228(2).
KBR cites several more recent decisions which applied Reid and the Restatement test to reach a different conclusion than Hays and Weinstein. For example, in Shaul v. Cherry Valley-Springfield Cent. School, 363 F.3d 177 (2d Cir. 2004), the Second Circuit Court of Appeals held that a high school teacher's preparation of tests, quizzes, and homework problems fell within the scope of his employment; thus, the school district rather than the teacher owned the copyright to those materials under the work-for-hire doctrine of the 1976 Copyright Act. 363 F.3d at 186. The court rejected the teacher’s attempt to invoke an academic exception to the work-for-hire doctrine based on Weinstein, distinguishing that case on the ground that the school district did not have a formal written policy like the one in Weinstein. The court also noted that the academic tradition of granting university professors ownership of their scholarly works “is not pertinent to teaching materials that were never explicitly prepared for publication ... as opposed to published articles by university professors.” 363 F.3d at 186.
In two other cases, courts applied the rules stated in Reid without discussing any possible teacher or academic exception: Vanderhurst v. Colorado Mountain College Dist., 16 F. Supp. 2d 1297 (D. Colo. 1998) (professor’s outlines were works for hire where outlines were incidental to his employment and a method of carrying out employment’s objectives, even though he prepared them on his own time and with his own materials); Genzmer v. Public Health Trust of Miami-Dade, 219 F. Supp. 2d 1275 (S.D. Fla. 2002) (computer program written by postgraduate physician as assigned research project during his fellowship at county hospital was work for hire; therefore, copyright was owned by hospital).
Law review articles disagree on the current state of law with regard to this issue. Some commentators have expressed doubt that a teacher exception continued to exist after the 1976 Copyright Act. See Packard, Copyright or Copy Wrong: An Analysis of University Claims to Faculty Work, 7 Comm. L. & Pol’y 275, 314 (2002). Others believe the 1976 Copyright Act did not disturb the teacher exception to the work-for-hire doctrine. See Lape, Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies, 37 Vill. L. Rev. 223, 238-46, 268-69 (1992). Yet others believe a teacher exception is no longer necessary because, under Reid, most teachers’ works will fall outside the work-for-hire doctrine. See Wadley & Brown, 38 Washburn L.J. at 432 (“[S]ince the Court’s decision in the Reid case provides the necessary reasoning to support the proposition that some academic works created during employment are outside the work-for-hire doctrine, it is questionable whether an explicit ‘teacher exception’ for academic works is needed.”).
While it is far from clear that there is an absolute teacher exception to the work-for-hire doctrine as argued by KNEA, KBit’s argument on this point goes too far in the opposite direction. According to KBR, PERB’s factual findings show that PSU faculty is employed under work-for-hire circumstances and all intellectual properties created by the faculty in the form of scholarly works or creative endeavors are works for hire. The logical next step is to conclude that KBR owns all rights to any intellectual property created by PSU faculty. That is too big a leap. Even if PSU faculty are employees of KBR, that does not end the analysis for purposes of determining whether the works they create are works for hire. As described above, whether any particular creative work of a faculty member constitutes work for hire will depend on whether the work meets the Restatement test, i.e., whether it is the type of work the faculty member was hired to create; whether it was created substantially within the time and space limits of the job; and whether it was motivated by a purpose to serve the university employer. See Restatement (Second) of Agency § 228. This will necessarily involve not just a case-by-case evaluation, but potentially a task-by-task evaluation. See Wadley & Brown, 38 Washburn L.J. at 404.
Accordingly, the Court of Appeals, the hearing officer, and PERB erred in assuming that the work-for-hire doctrine would apply to any intellectual property created by PSU faculty simply because those faculty are employees of PSU.
Intellectual Property Other Than Copyright
KNEA also argues that the Court of Appeals’ decision failed to address other kinds of intellectual property including patents and trademarks. KNEA points out that the Patent Act, 35 U.S.C. § 1 et seq. (2000), does not include the same kind of work-for-hire provisions as does federal copyright law. Rather, absent a written assignment of rights pursuant to 35 U.S.C. § 261 (2000), patent ownership issues are resolved by common law.
United States v. Dubilier Condenser Corp., 289 U.S. 178, 187-89, 77 L. Ed. 1114, 53 S. Ct. 554 (1933), stated the rule for when an employer owns the patent rights to an employee’s invention:
“One employed to make an invention, who succeeds, during his term of service, in accomplishing that task, is bound to assign to his employer any patent obtained. The reason is that he has only produced that which he was employed to invent. His invention is the precise subject of the contract of employment. A term of the agreement necessarily is that what he is paid to produce belongs to his paymaster. [Citation omitted.] On the other hand, if the employment be general, albeit it covers a field of labor and effort in the performance of which the employee conceived the invention for which he obtained a patent, the contract is not so broadly construed as to require an assignment of the patent. [Citations omitted.]”
Dubilier has been interpreted to mean that an employee must be specifically hired or directed to create an invention before the employer may claim ownership of patent rights. See Teets v. Chromalloy Gas Turbine Corp., 83 F.3d 403, 407 (Fed. Cir. 1996).
In circumstances where the employee was not specifically hired or directed to create an invention, but he or she does so during his or her hours of employment and while working with his or her employer’s materials and equipment, the employer may obtain what is known as a “shop right.” Dubilier, 289 U.S. at 188. A shop right allows the employer to use the employee’s invention without liability for infringement but also without obtaining ownership of it. Dubilier, 289 U.S. at 188-89; Teets, 83 F.3d at 407.
Again, as with federal copyright law, federal law regarding patent ownership does not prevent the parties from entering into a memorandum of agreement regarding the subject of patent ownership. To the contrary, the Patent Act specifically provides that the parties may assign patent ownership rights. 35 U.S.C. § 261. Thus, federal law does not preempt any kind of intellectual property rights from becoming the subject of a memorandum of agreement under PEERA.
State Law Preemption
In addition to finding that the subject of intellectual property rights was preempted by federal copyright law, the hearing officer in this case also found that, under state law, the disposition of funds received from intellectual property belonging to the state’s educational institutions was fixed by state statute and was therefore not a condition of employment. In support, the hearing officer cited K.S.A. 76-718. K.S.A. 76-718 provides:
“All moneys received from the rent or sale of property, interest on endowment funds, moneys from the federal government, or from any other source by state educational institutions or their employees under the law or the order of the board of regents or by the state for such state educational institutions are hereby dedicated to the use of the state educational institution collecting or for which the same are collected.” (Emphasis added.)
The hearing officer concluded that, by virtue of the operation of this provision, disposition of funds received from intellectual property was “fixed by statute” and was not a mandatorily negotiable condition of employment pursuant to K.S.A. 75-4322(t).
The Court of Appeals did not discuss this issue. The district court rejected the hearing officer’s conclusion that K.S.A. 76-718 controls the disposition of funds received from intellectual property. The district court stated:
“K.S.A. 76-718 cannot be read in such a broad manner. This statutory provision maintains that certain monies — not intellectual property rights — received by either: (1) Pittsburg State University, (2) any Pittsburg State University employee, or (3) the State of Kansas for Pittsburg State University be dedicated to the use of Pittsburg State University and not, say, the University of Kansas, Kansas State University, or Wichita State University. K.S.A. 76-718 is awkwardly out of place and inapposite.”
We agree with the district court. K.S.A. 76-718 only provides that monies received for a particular state education institution are dedicated to that specific educational institution. The statute does not govern whether monies received by an educational institution’s employees for the sale of intellectual property belong to the educational institution or the employee.
Accordingly, PERB erroneously interpreted the law in concluding that, under state law, the disposition of funds received from intellectual property was fixed by state statute and was therefore not a condition of employment.
Conclusion Regarding Preemption
Neither state nor federal law preempts the subject of ownership of intellectual property from being the subject of negotiations between a public employer and a recognized public employee organization or being included within the scope of a memorandum of understanding. Therefore, the subject of the ownership of intellectual property is not preempted within the meaning of K. S. A. 75-4330(a)(1), the applicable provision of PEERA.
Condition of Employment
The.next logical question is whether intellectual property rights are a condition of employment under PEERA. The Court of Appeals did not address this issue, although the parties discussed it in their briefs. This court is free to consider issues which were presented to but not addressed by the Court of Appeals pursuant to Supreme Court Rule 8.03(h)(3) (2004 Kan. Ct. R. Annot. 58). Alires v. McGehee, 277 Kan. 398, 404-05, 85 P.3d 1191 (2004).
According to the KNEA, both PERB and the district court agreed that intellectual property rights are a condition of employment under PEERA. This is not an accurate reflection of PERB’s ruling. As noted earlier, PERB did not make the determination. Rather, PERB adopted the hearing officer’s opinion which stated: “Based upon the facts set forth above, this determination will proceed on the assumption that the subject of intellectual property rights intimately and directly affects the work and welfare of the public employees at issue here.” (Emphasis added.) In a footnote, the hearing officer commented that KBR had made a compelling argument to the contraiy based upon the professors’ receiving full compensation for any intellectual property they created as part of the normal, expected course of their employment.
The district court, on the other hand, did address the question and ruled that intellectual property rights were a condition of employment. In doing so, the district court applied the test approved in Pittsburg State of whether the item was “significantly related to an express condition of employment.” See 233 Kan. at 816. The district court accepted the hearing officer’s findings of fact adopted without modification as PERB’s final agency order, but ruled that PERB had reached an erroneous legal conclusion when applying the law to those facts.
In its brief before the Court of Appeals, KBR argued that the district court overstepped and substituted its own judgment for that of PERB in ruling that ownership of intellectual property rights was a condition of employment under PEERA. KNEA responds that the district court did not substitute its judgment or reweigh facts; rather, the court accepted those findings of fact but drew a different legal conclusion from those facts. Furthermore, the district court concluded that the provisions of K.S.A. 75-4326 regarding public employer rights did not apply, an issue not reached by PERB.
The facts of Transam Trucking, Inc. v. Kansas Dept. of Human Resources, 30 Kan. App. 2d 1117, 54 P.3d 527 (2002), are instructive. In that case, an employer sought review of an agency decision awarding unemployment benefits to the claimant after the employer had fired the claimant for his involvement in several accidents. The agency concluded that the claimant’s involvement in the accidents did not amount to “misconduct,” which would have disqualified him for unemployment benefits. On appeal, the district court found that the agency had applied an outdated legal definition of misconduct from an earlier version of the applicable statute. The district court then found that the claimant’s accidents did constitute misconduct under the current statutory definition.
The Court of Appeals reversed, holding:
“The district court overstepped. A district court reviewing the Board’s decisions may grant relief only on the grounds set forth in K.S.A. 77-621(c). [Citation omitted.] These grounds include the agency’s erroneous interpretation or application of the law. K.S.A. 77-621(c)(4).
“Here, the district court was within its authority to recognize the agency had erroneously applied K.S.A. 44-706(b)(1) (Furse 1993) and to grant relief, but it should have remanded for further Board findings under the proper standard. N either the district court nor this court has de novo review of this matter. [Citation omitted.] The district court was not free to substitute its own findings for those of the Board or referee.” 30 Kan. App. 2d at 1123-24.
Similarly, in this case, the district court was authorized to determine whether PERB had erroneously interpreted and applied the law to the facts of the case pursuant to K.S.A. 77-621(c)(4). As the hearing officer s decision notes, not all findings regarding facts about conditions of employment were made and the hearing officer did not reach the step of employing the balancing test recognized in Pittsburg State which requires applying the law to the facts. See 233 Kan. at 816 (“PERB, in order to determine whether a particular item is or is not mandatorily negotiable, has developed and employs a balancing test: If an item is significantly related to an express condition of employment, and if negotiating the item will not unduly interfere with management rights reserved to the employer by law, then the item is mandatorily negotiable.”). The district court should have remanded the case to PERB for additional findings regarding whether ownership of intellectual property is a condition of employment and whether the exception of K.S.A. 75-4330(a)(3) (public employer rights as defined in K.S.A. 75-4326) applies. See K.S.A. 77-621(c)(3) (court may grant relief where “the agency has not decided an issue requiring resolution”). We, therefore, reverse the district court regarding its findings on these issues and remand to the district court with directions to remand to PERB for further proceedings.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.
Larson, S.J., assigned.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages to plaintiff’s truck which was struck by a freight train on defendant’s interurban railway a mile or two west of Kansas City.
The locus in quo was as follows: North of the Kaw river, which flows eastwardly thereabout, lie the tracks of the Union Pacific railway. North of the Union Pacific tracks is a bluff which parallels the river and the railway. On the side of the bluff about twenty feet higher than the Union Pacific tracks is a natural shelf upon which there is a narrow roadway known as the “old Muncie road.” Immediately north of this old roadway lies the interurban track of the Kansas City, Kaw Valley & Western Railway Company, defendant in this action. A short distance north of defendant’s interurban line and on a still higher level a new public highway was being constructed at the time of the incident of present concern.
East of the place where the collision occurred the new road was so far completed that it was used for traffic. At that point westbound traffic on that new road veered to the south across the defendant’s railway and turned sharply to the right on the old Muncie road. There was no regular railway crossing at this point, but there was a “well-defined and well-beaten roadway up to and across the tracks of the defendant” which had existed for several months notwithstanding defendant had made repeated efforts to stop it. Immediately west of this irregular crossing, on the north side of the track, there was situated a rock crusher with bins and machinery in an edifice 40 by 50 feet in area and 25 or 30 feet high.
On the afternoon of May 8, 1929, plaintiff came from the east driving a 2%-ton truck loaded with fifty sacks of cement. He left the new road under construction and turned south to cross defendant’s railway, intending to proceed westward on the old Muncie road. That road is so narrow at that place that plaintiff’s truck could not be driven directly across defendant’s railway and then turned westward without danger of toppling over the shelflike embankment down to the Union Pacific tracks below. It was necessary for plaintiff to negotiate defendant’s railway track at an angle and to see-saw back and forth several times. While plaintiff was thus engaged defendant’s freight train, consisting of six carloads of sand drawn by an electric locomotive, came from the west and demolished plaintiff’s truck.
Plaintiff’s petition charged negligence in various particulars.
Defendant’s demurrer thereto was overruled, and it answered with a general denial, and alleged that plaintiff’s damages were the direct and proximate result of his own negligence in driving his truck on the railway track without proper regard or caution.
On this joinder of issues the cause was tried before a jury. Plaintiff testified that the rock crusher was located about ten feet north of defendant’s railway track and that he had been there several times—
“It is a pretty fair crossing but a short turn there for a large truck to the west. . . .
“I came down this steep grade east of the rock crusher and I could not quite make the turn there and I had to back up once before I turned south. . . .
“Q. Now, if you had continued on south what would have happened? A. I would have went over the bank there about twenty feet deep.
“Q. How far south did you go then? A. I went as far as the car tracks and crossed to turn the front wheels over the south rail.
“Q. Then what did you do? ... A. Then I stopped very still there.
“Q. Now we have got you stopped on the track, now what did you do after having stopped? A. I backed up to get cater-eornered.
“A. I pulled up again on the north tracks and stopped, the left front wheel over the south rail.
“Q. What did you do again? A. I backed up again.
“Q. Now after you started and stopped twice, and having backed up a couple of times, where were you when you backed up after you had backed up this second and third time, whatever it was? ... A. ... I pulled back onto the track'before the collision and then I backed off and pulled back on the track again. At that time I had the truck on the track and I was going to put something on the track so I could go northwest. And just as I got out on the track I seen the switch engine coming and I tried to reverse and get back off the track, and I seen I couldn’t back it and bj' that time they struck me.
“Q. From your position in the cab, at the time that the front end of your car was on the north rail of the track, after you had backed up the second or third time, from your position in the cab could you see south and west down the track as you could if you had been up in the center of the track? A. No, sir, I couldn’t.
“Q. Why not? A. The rock crusher sitting on the west and between me and the view of the west.
“Q. You didn’t go forward on these tracks and didn’t see if a train was coming? A. No, sir.
“Q. How long would it take you to back up after you switched your gears? A. O, I don’t know, probably half a minute or a minute.
Q. You stopped your car on the railroad track? A. Yes, sir.
“Q. And the purpose of building the roadway for yourself with rocks and boards was so you could go on? A. Yes, sir.
“Q. Did you have any rocks or boards on your car? A. I didn’t have any on the car; no, sir. There were plenty around there.
“Q. You had to get out of the seat to get the rocks and boards to fill that up and build your roadway and go on? A. Yes, sir.-
“Q. And before you could do that, what happened? A. I looked up and see this switch engine coming.
“Q. So now in those three operations from the time you first passed the east side of that crusher and got out on the track the first time you had completed these changings, backing the three times and pulling forward and stopping, and stopped for the purpose of building a way so you could get off the track, tell the jury how long a time elapsed. A. Really I don’t know. Probably four or five minutes. I don’t know. I didn’t pay any attention to that.
“Q. Then you knew when you went up on there the third time in the position you had your car, that you couldn’t drive over the crossing without stopping to put something — put rocks or boards or something on the south side of the track so it would let you down without breaking a spring? A. Yes, sir; I seen that.
“Q. You stopped on the track that third time you went upon the track, to get out, as you testified yesterday, to put the boards or rocks in front of your car? A. I would if the switch engine had not been coming.
“Q. Exactly. That was your purpose in stopping there. A. Oh, yes, sir.
“Q. Then before you got past the rock crusher your vision was obstructed, wasn’t it? A. Yes, sir, it was.”
Defendant’s demurrer to plaintiff’s evidence was overruled, and witnesses called by the railway company testified as to the circumstances, the condition of the crossing, the location of the crusher and the efforts of plaintiff to get his large truck across the railway track by moving it back and forth at suitable angles. One eyewitness testified:
“His truck teetered back and forth on the track. . . . After the second backing it completely stopped and then went forward again. . . . Then when it started forward it proceeded about as far as it did the first time. . . . Then it was brought to a stop again. I think the train was pretty well on it at that time. ... I looked at the truck pretty much. The train was coming from that way and the object was to see what was going to happen. Mr. Dennis’ truck was on the crossing, the bell was ringing and I knew something was going to happen.
“Q. Can you give this jury any idea in seconds or minutes of the length of time that elapsed from the time that Mr. Dennis’ truck first went on to the track, the length of time that it took that truck to make — to run across the track, be shifted into reverse and to back up, and then he shifted into a forward speed and go forwards, and be shifted in another reverse and go back, and be shifted into another and go forward again — can you give the jury any idea as to the length of time that elapsed while that was taking place?
“A. Well, I didn’t keep the time. I judge it was more than ten seconds; yes, sir. I don’t believe it was more than two or three minutes. I don’t think it was that long. I will split the difference with you and say one minute and a half. I don’t know whether there had been as much as a minute and a half elapsed from the time I first heard the whistle and the bell until I heard the collision.”
The train conductor who had been riding in front of the electric locomotive with the engine man testified that he first noticed plaintiff’s truck when the engine was 100 feet west of it; that the train was running at twelve to fifteen miles per hour; that the emergency air brake was applied, which slowed down the train to two miles an hour when the collision occurred. He also testified that there was nothing to obstruct a view of an object on the crossing from a distance of 500 feet west if the object was on the crossing. The testimony of the motorman who operated ,the locomotive was much to the same effect. Defendant’s railway superintendent testified as to his orders and efforts to prevent or terminate the semblance of a crossing at the place of collision.
The jury returned a verdict of $937.50 in favor of plaintiff as damages for the demolition of his truck and for loss of earnings, and made a number of special findings, some of which read:
"3. Was the place where the plaintiff attempted to cross the track of the defendant a public highway established by the state, county or township? A. No.
“3a. If you answer question No. 3 in the negative, state whether or not at said place there was a well-defined or well-beaten roadway up to and across the tracks of the defendant. A. Yes.
“5. Did the engineer and conductor in charge of defendant’s train exercise ordinary care in approaching the place where the accident occurred? A. No.
“6. If you answer the last above question ‘No,’ then state specifically and definitely in what manner and in what particular they or either of them failed to exercise ordinary care. A. Was not watching close enough and failed to apply brakes soon enough.
“7. What distance west of the point of collision was the train when the engineer first saw plaintiff’s truck approaching the railroad track? A. Sixty feet.
“7a. How long was the plaintiff’s truck on the tracks of the defendant immediately prior to the collision? A. One and one-half minutes.
“7b. What, if anything, prevented the operator of the engine from seeing plaintiff’s truck upon the track during the period of time that you find from the preceding question said truck was on the track, prior to the collision? A. Nothing.
“8. Did the engineer of said train do everything he reasonably could do to avoid striking plaintiff’s truck after he discovered the truck in a position of danger? A. Yes.
“10. If the plaintiff had looked toward the west before starting his truck forward across the track the last time, how far could he have seen the approaching train? A. From 400 to 500 feet.
“11. Could the plaintiff by keeping a vigilant lookout while negotiating the position of his truck on the track have seen the train approaching from the west before it got within thirty-five or forty feet of him? A. Yes.”
Judgment for plaintiff was entered on the verdict and special findings. Defendant assigns and argues various errors, some of which may require no attention.
The jury’s finding No. 6 was that defendant’s negligence lay in the fact that its employees were “not watching close enough and failed to apply brakes soon enough.” That finding acquitted defendant of all other negligence charged in the petition. (Williams v. Railway Co., 100 Kan. 336, 164 Pac. 260; Morlan v. Atchison, T. & S. F. Rly. Co., 118 Kan. 713, 236 Pac. 821.) The special findings bind plaintiff and defendant alike, where they are supported by competent evidence; and here the plaintiff, at least, does not complain of them. Finding No. 10 shows that if plaintiff had looked toward the west before starting his truck across the track the third fpne he could have seen the approaching train when it was 400 or 500 feet away. When plaintiff drove his truck on the railway track he took no effective precaution to assure himself that no train was coming within the time it would take him to negotiate the crossing by see-sawing at an angle back and forth. Moreover, he knew he would have to stop on the track until he could pick up boards and rocks to lay against the rails to make a runway to steer the truck diagonally across the railway track so that it could proceed westward on the old Muncie road. Even if the crossing had been a regularly established one, the duty would have rested on plaintiff to assure himself that no train was coming so near at hand that it would be dangerous to undertake to cross ahead of it. It was the sheerest sort of negligence for plaintiff to undertake to negotiate that irregular railway crossing without regard to the possibility of a train’s approach. While plaintiff testified that he looked and lis tened for a train and neither heard nor saw it until it was almost upon him, his own testimony also was that because of the noise of the stone crusher he could not hear, and because the building housing the crusher cut off his view, he could not see, at the only time it would have done any good to look — immediately before driving on the track. And it was likewise negligence to drive pn such a crossing with a heavy vehicle — five tons as loaded, knowing the necessary and complicated maneuvers it would take to accomplish it, and that he would have to let the truck sit on the track while he would get out of the cab and gather materials on the ground thereabout to make a runway. (Malott v. Railroad Co., 99 Kan. 115, 160 Pac. 978; Allen v. Railway Co., 104 Kan. 23, 178 Pac. 395.) The special findings and the plaintiff’s own testimony convicted him of contributory negligence, and judgment in favor of defendant should have been entered either on demurrer to plaintiff’s evidence or on the special findings, or on both.
This case does not differ in principle from many other railway-crossing cases where damages had to be withheld because of plaintiff’s contributory negligence notwithstanding the negligence of the railway company. (Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, and citations; Clark v. Atchison, T. & S. F. Rly. Co., 127 Kan. 1, 5, 272 Pac. 128; Anno., Railroad Crossing, Contributory Negligence, 56 A. L. R. 647, et seq.)
The theory of “last clear chance” was projected into the case at the trial and is reflected in the court’s instructions, but the special findings of the jury made it clear that there was neither time nor opportunity in this case for the application of that rule of law. (Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 252 Pac. 472; Dearing v. Wichita Rld. & Light Co., 130 Kan. 142, 285 Pac. 621.)
The judgment of the district court is reversed and the cause remanded with instructions to enter judgment for defendant.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in two counts to recover from the defendant for oil claimed by the plaintiffs to have been sold and delivered by them to him at his garage in Williamsburg, Kan., between September 27, 1929, and February 22, 1930, in the sum of $244.45, and for a balance of rent on the garage building for four months in the sum of $82.25, with interest on both items.
The defense was a general denial. The case was tried to the court without a jury and judgment was rendered for plaintiffs and against the defendant on both counts, from which judgment the defendant appeals.
It is the contention of the appellant that the arrangement and transaction disclosed by the evidence in the case bring the whole matter within the inhibition of the statute of frauds (R. S. 33-106), being an action to charge the defendant upon a special promise to answer for the debt of another, which must be in writing and signed by the party to be charged.
The theory of the defendant, which was supported by his own evidence and that of other witnesses called by him, was that he never owned or operated the garage and never purchased any oil from plaintiffs to be used at the garage, nor rented the garage building, but that he furnished the money for the purchase of the garage equipment in the sum of $800 for the benefit of his cousin, Ray Ragan, who purchased it from his predecessor, Smith, and that the defendant gave a bill of sale for the equipment to Ragan and took his notes therefor in the sum of $850, and that Ragan purchased the oil, rented the garage building and conducted the business. Defendant, of course, gave Ragan all his business, was frequently at the garage and anxious for him to succeed. It is not claimed by the plaintiffs that there was anything in writing either concerning the purchase of the oil or the renting of the building, so that if the evidence should show the obligation and debt to have been that of Ragan instead of the defendant, the case would come under the inhibition of the statute.
The testimony of the defendant and Ragan was consistently along this line and in support of the theory that Ragan transacted all the business for himself and that the defendant made no purchases or contracts in connection with the garage except to furnish the money for the investment. Considering separately and alone the testimony introduced by the defendant, it might reasonably well support his theory, although some portions of it shown upon cross-examination might give some reason for doubt — for instance, the agreement to make the charge to defendant for the first purchase of oil from plaintiffs on September 27, 1929; the advertisement in the town paper immediately after the purchase of the garage from Smith, naming the defendant as owner and Ray Ragan as manager; the continuance of this newspaper notice for about four weeks; the arrangement between defendant and Ragan for compensation for Ragan in the sum of $18 per week and one-half the profits, which plan lasted perhaps a month; one of the notes given by Ragan to defendant for the purchase of the equipment dated in November instead of September, when both the oil purchases and the rent account began; the conference of defendant with the agent of plaintiffs in January about disposing of the equipment to pay the bills and later the appropriating to himself the adding machine, the most valuable part of the equipment, when the business ceased, and applying the value of it on one of the Ragan notes. Of course, these features which lean contrary to the theory of the defendant would naturally and properly be swept aside if the trial court had accepted and credited the theory of the defendant that the debt was that of another, viz., that of Ragan. But the trial court did not credit this view of the transactions but accepted and credited the theory of the plaintiffs, which was supported by positive and direct evidence of the agent of the plaintiffs to the effect that the arrangements for the sale of oil and for the rent of the building were both directly with the defendant and were not made by Ragan or by the defendant for the benefit of Ragan. On this all-important question at issue there was a very decided conflict in the evidence, and the oft-repeated rule requires a court of review' to leave undisturbed such determination of issuable facts and accept such findings as conclusive if there is any substantial and competent evidence to support the determination reached.
“The determination of issuable facts is the province of the trial court and its determination thereon will not be disturbed on appeal where there is substantial evidence to support the trial court’s findings and judgment.” (Bateman v. Preisser, 123 Kan. 217, syl. ¶ 2, 254 Pac. 1028.)
“A general finding of fact made by the trial court on conflicting evidence will not be disturbed on appeal where there was evidence to support the finding made by the court.” (Keister v. First Nat’l Bank, 126 Kan. 495, syl., 268 Pac. 820.)
“Rule followed that where a general finding and judgment of the trial court is supported by substantial testimony the supreme court cannot undertake to make an independent determination of the question whether the preponderance of evidence inclined on the side of the prevailing party or on the side of his adversary.” (Stanley v. Stanley, 131 Kan. 71, syl. 2, 289 Pac. 406. See, also, Roman v. St. Louis-S. F. Rly. Co., 120 Kan. 585, 245 Pac. 115; C. & A. Auto Supply Co. v. Sharpe Brothers Contracting Co., 127 Kan. 279, 273 Pac. 466; and Closson v. Kaw Packing Co., 129 Kan. 418, 283 Pac. 493.)
So we cannot accept and apply the theory of the defendant that the case comes under the inhibition of the statute of frauds.
Appellant urges as error the admission of evidence of outside parties tending to show that the defendant held himself out to them as being the owner of the garage as wholly irrelevant and immaterial because the agent of the plaintiffs knew such was not the case, and the plaintiffs, being charged with the agent’s knowledge, could not have been misled by such' attitude of the defendant. We are not persuaded that this testimony was objectionable for the reasons given, for it does not appear that it was introduced to show plaintiffs were in any way misled by the attitude of the defendant. They base their claim upon direct arrangements between their agent and the defendant and are not urging or relying upon any misleading feature. Besides, such evidence would appear to be corroborative of that given by the plaintiffs’ agent in which he stated he dealt with the defendant as the owner of the garage, and instead of knowing the contrary he expressed himself as considering the defendant as the actual owner.
There is an abundance of evidence to support the finding of the trial court, and we find no error in the admission of evidence nor in the trial of the cause.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages to an automobile and for personal injuries alleged to have been sustained by plaintiff in a collision with the defendant’s train, and to have resulted from defendant’s negligence. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.
Defendant’s tracks and right of way extend north and south through the city of Iola. They are intersected by West street, a paved east-and-west street which is much used, being the principal thoroughfare of the city and a part of state highway No. 54 of the state highway system. Defendant’s passenger depot, its freight depot and principal switch tracks are south of West street, but it has switch tracks north of West street which serve the stockyards and several industries. It has two tracks crossing West street — its main-line track and a switch track. It keeps a flagman at this crossing from nine o’clock in the forenoon until five o’clock in the afternoon, and there was evidence that at later times in the day, when switching was being done across this street, there was usually or frequently a flagman or trainman there to direct traffic. Defendant maintained an electric crossing bell on a post on the east side of the crossing. The casualty occurred about eight o’clock on the evening of November 2, 1929. Defendant’s freight train had work to do at Iola that evening, The train was cut in two south of West street, the engine proceeded north to the stockyards with three cars and picked up twelve cars on the stock track, and was backing the string of fifteen box cars south on the main-line track across West street. Plaintiff lived at Iola and was familiar with this crossing. He frequently crossed defendant’s tracks on West street, both in the daytime and in the evening. He knew defendant kept a flagman at this crossing in the daytime, and usually or frequently in the evening when switching across this street was in progress. He knew of the electric crossing bell and had been at the crossing when it was ringing and at other times when it was not. On the evening in question he drove his Ford sedan east on West street, intending to cross defendant’s tracks. There was an electric street light on the east side and another on the west side of the tracks at this crossing. It was after dark, there was no moon, though the stars were shining. The lights on his car were burning, his car windows were open, the electric signal bell was not ringing, and there was no flagman or track man at the crossing. Because of a rough place in the pavement he slowed down a short distance before reaching the track and continued to drive slowly. He testified he looked both ways and could see no train, and listened and could hear none; that just about the time he started to drive upon the track he saw the train. • The front wheels of his car had crossed the first rails of the track when he was struck by the freight train, and his car, with plaintiff in it, was pushed south perhaps seventy-five feet before defendant’s train was stopped. His car was damaged beyond repair, and he was injured. No point is made on this appeal about the amount of damages if plaintiff is entitled to recover. An ordinance of the city required that when trains were moved across the street, not preceded by an engine, the speed should not exceed five miles per hour and a brakeman should be stationed on the end of the train or car next to the street to warn passengers on the street of the approach of the train, and to give signals to the engineer of danger of accident, and to stop the train when necessary to prevent an accident. Another ordinance required defendant to construct and maintain a sufficient wigwag signal of modern type, or keep a watchman at street crossings extraordinarily dangerous on account of the nature thereof and the amount of traffic.
Answering special questions, the jury found that plaintiff was familiar with the crossing, that he had proper headlights on his car and that they were lighted, that defendant maintained a bell-ringing signal at this intersection but that it was not working at the time of the casualty; that there were no conditions, surroundings or circumstances on this particular night at the crossing that would require plaintiff to bring his automobile to a dead stop before driving on the crossing; that defendant did not have any lights or other warning signals on the rear of the box car approaching the crossing, and did not sound the engine whistle while backing the train over the crossing; that the engine bell was ringing; that the speed of defendant’s train was ten miles per hour and that of plaintiff’s car four miles per hour; that plaintiff had complete control of his car; that there were electric street lights burning on the east and west sides of the railroad crossing, and that defendant’s negligence consisted of improper signals and too much speed.
It is, of course, the well-settled law in this state that a railroad track is of itself a sign of danger, that one crossing it at an intersection must realize that he must stop for the train, that the train cannot stop for him, and that due care on his part requires that he look and listen for approaching trains, and, if his view is obstructed and it is essential for his safety for him to do so, that he stop and if necessary go forward on foot and look for trains. (Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742; Acker v. Railroad Co., 106 Kan. 401, 188 Pac. 419; Rule v. Railway Co., 107 Kan. 479, 192 Pac. 729. See, also, B. & O. R. R. v. Goodman, 275 U. S. 66.) But he is not, under all circumstances, as a matter of law, required to stop before crossing a railroad track (Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023). At busy intersections, such as busy city streets, where a flagman is ordinarily kept when trains are crossing, the absence of the flagman at the time he attempts to cross is a matter properly to be taken into Consideration by the jury in determining his contributory negligence. Where a railway maintains a mechanical device, such as an electric bell, less reliance can be placed upon it than could be placed on the flagman, for it may be out of repair. (Jacobs v. Railway Co., supra.) Perhaps it is more accurate to say that the person approaching the intersection cannot rely entirely on the fact that the mechanical device is not in operation where one is maintained, or that the flagman is not present where one is usually maintained. He still is under the duty to use due care for his own safety, but these are potent factors to be taken into consideration by the jury in determining his contributory negligence. (Bollinger v. Railway Co., 113 Kan. 124, 213 Pac. 644, and cases there cited; also, Peterson v. Railway Co., 115 Kan. 751, 225 Pac. 116; Polfer v. Chicago, G. W. Rld. Co., 130 Kan. 314, 286 Pac. 240.) It is true a witness on behalf of plaintiff, who was following him in a car about half a block away, testified that he saw this train as it came into the intersection; also a witness for plaintiff, who at the time of the collision was at a filling station on the other side of the track, testified that he could see the train as it approached the intersection. From this it is argued that plaintiff could have seen it. But there was no light north of the track except what little was in the engine cab fifteen car lengths or more north of the intersection. Defendant’s train was moving with but little noise. It is not seriously argued that he should have heard it. There was evidence that there was no brakeman or light on the end of the train or car which was approaching the intersection. It is quite possible, in the situation plaintiff was in, he could not see this train moving out of the semidarkness from the north until it came within the range of the lights of his automobile. The absence of any flagman, or anyone directing the traffic at the intersection, and the fact that the bell was not ringing, as well as all of the other evidence bearing upon the circumstances, were properly to be considered by the jury in determining whether plaintiff was guilty of contributory negligence. In view of all the facts and circumstances we deem that it was a proper question to submit to the jury.
There was a'sharp conflict in the evidence as it related to the negligence of defendant. Evidence on behalf of plaintiff tended to show that the signal bell was not ringing, that plaintiff was driving slowly on the right-hand side of the street, that defendant’s train was backing across the intersection from the semidarkness to the north, with little noise, with no warning signal of any kind, and without a watchman or a brakeman on the front end of the car as it crossed the intersection. Witnesses on behalf of defendant testified that the signal bell was ringing and the engine bell ringing, that the whistle was blown, and that a brakeman with a lighted lantern was riding the front end of the car as it entered the intersection. He testified that he was on the east side and south end of the front car, proceeding south, riding the stirrup, which was right on the corner of the box car; that he had a lighted lantern with him; that when'they started back toward the main part of the train and had to cross West street the train was moving at perhaps six or seven miles per hour; that he gave the engineer the signal to slow down for the crossing, and that the train slowed down; that he looked in both directions and did not see anyone on the street; that he gave the engineer the back-up signal, which hadn’t taken hold and caused the train to gain any speed until plaintiff’s car showed up; that he didn’t notice how fast plaintiff was coming until he got right at the crossing, at which time plaintiff was going about thirty or thirty-five miles an hour and traveling on the left-hand side of the street; that he gave the stop signal to the engineer, who recognized the signal and responded; that the witness stepped off the stirrup in the middle of the street to keep from getting hit, and hollowed and whistled as he jumped off, trying to attract plaintiff’s attention. There was also evidence that the broken glass of the windshield was near the south side of West street, tending to show that the collision took place at that point; also evidence that there were marks on the pavement where plaintiff’s tires had skidded for perhaps thirty feet because the brakes had been put on. Among other instructions given was No. 15, which, so far as here material, is as follows:
“. . . It is further disclosed by the evidence as testified to by several witnesses for the plaintiff, that the bell-ringing signal was not in operation; that is, that it was not ringing. It is further disclosed from the evidence as testified to by the plaintiff, that he approached the crossing with some degree of caution and slowed down the speed of his automobile to about five miles an hour; that he looked and listened;-that he heard no bells ringing; he heard no whistles blowing, and under those conditions and circumstances and surroundings, he drove upon the track. . . . The evidence introduced by the plaintiff tended to show that there was no signal or no light of any land, or warning upon the box car that was approaching from the north, and that there was no flagman or any other person riding thereon. Now, under those circumstances and conditions as disclosed from the evidence, it is for you to say, gentlemen of the jury, whether the plaintiff used that degree of caution and care and prudence that an ordinarily prudent man would have used under like circumstances, conditions and surroundings.” (Italics ours.)
Appellant complains of this instruction on the ground that it tended to authorize the jury to return a verdict upon evidence offered by plaintiff when there was contradictory evidence on the same points offered by defendant. The instruction is open to that interpretation and is therefore erroneous. We have carefully read the other instructions and do not find this error counteracted by any of them. The result is there must be a new trial.
Appellant complains, also, of instruction No. 17, which we deem it unnecessary to quote. It dealt with the relative weight to be given by the jury to negative and affirmative testimony concerning a specific point. The instruction as given is contrary to the rule laid down by this court in K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702, 7 Pac. 587; Weir v. Railways Co., 108 Kan. 610, 196 Pac. 442. It may be questioned whether the court aids a jury much in giving an instruction on this point, but if one is given it should follow the rule previously announced by this court, and it should be so used that a wrong inference be not drawn from it. (State v. Scott, 117 Kan. 303, syl. ¶ 9, 235 Pac. 380.)
Appellant complains of other instructions, but we deem it unnecessary to comment specifically upon them further than to say that they do not seem to point out clearly the duty of the jury with respect to finding the negligence of defendant. Naturally the first point necessary for plaintiff to establish was the negligence of defendant in the particulars alleged in his petition, and that the injury was a result therefrom. While instruction No. 15, a part of which is above quoted, was given in relation to plaintiff’s contributory negligence, the testimony referred to therein and the testimony offered by defendant with respect to those points went to the question of defendant’s negligence. We do not find that was made clear to the jury.
Appellant complains that some of the special questions requested were not submitted to the jury. The special questions submitted by the court embodied most of those requested by defendant and omitted none that was essential, hence there is no error in the ruling of the court on that point.
Finally it is argued by appellant that it was not definitely shown that the intersection was within the corporate limits of the city of Iola, and hence that the city ordinance referred to in the pleadings, evidence and the court’s instructions should not have been considered. This point is quite devoid of any merit.
Because of the error in the instructions the judgment of the court below is reversed with directions to grant a new trial.
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The opinion of the court was delivered by
Burch, J.:
Ray Carter was convicted of violating the liquor law, and appeals.
Carter, Will Beck and Charles Prushafer were jointly charged, in an information containing two counts, with possession of liquor and transportation of liquor. The three defendants were convicted under the count charging possession, and Beck was also convicted under the count charging transportation. Each defendant served notice of appeal. Prushafer abandoned his appeal, has served his sentence, and his appeal has been dismissed. The appeal of Beck has been continued.
Carter made a timely motion to quash the panel of jurors, on two grounds. One ground was that, in advance of the selection of persons to serve as jurors, the county attorney solicited township trustees to select none but those who favored the prohibitory law, and as a result, no jurors were selected except persons who were especially favorable to the prohibitory law. The other ground was that the regular panel included nine women whose names were not on the assessment roll of the preceding year. Defendant offered to support the motion by evidence, but the court ruled as follows:
“Assuming the statement to be true, the motion to quash the panel will be overruled.”
There is nothing else in the abstract relating to the subject of selection of jurors, and nothing relating to the impaneling of the jury which returned the verdict.
Township trustees and mayors of cities select persons to serve as jurors for a year. On receiving the list the county clerk writes the names of the selected persons on separate slips of paper, and places the slips in the jury box. Before a term of court is held, a drawing from the box occurs, and the persons whose names are drawn constitute the regular panel for the term. Trial juries are chosen from the regular panel. If at any time a sufficient number of jurors is not present to form a jury for the trial of a case, the court may direct the sheriff to fill the panel by summoning bystanders or persons in the neighborhood. The statute' prescribes general qualifications for those who may be selected for jury service and regulates the mode of selection, to the end there may be available when court meets a panel of suitable persons duly chosen to serve as jurors. A defendant charged with crime is entitled to have the trial jury made up as far as possible of members of the regular panel. The statute, however, is directory, and a defendant may not cause the panel to be quashed on any ground which does not involve corruption, serious misconduct, or palpable disregard of law. Informalities and irregularities are not enough.
The statute reads as follows:
“They [those who make jury lists] shall select from those assessed on the assessment roll of the preceding year suitable persons having the qualifications of electors, and in making such selection they shall choose only those who are not exempt from serving on juries, and who are possessed of fair character and approved integrity, and in possession of their natural faculties, and not infirm or decrepit, and who are well informed and free from legal exceptions: Provided, That no person shall be selected as a juror who either in person or by any other means shall solicit his selection as such; and the trustee of each township and the mayor of each city shall each select at least one person for each fifty inhabitants therein.” (R. S. 43-102.)
So far as the motion to quash discloses, this statute was not infringed, except with respect to the women who were not on the tax roll. All formalities were observed. There was no corruption of jurors or design to corrupt them. Conceding but not deciding that the conduct of the county attorney and of the township trustees may be censurable as savoring of jury plugging at the source, the motion does not show that the defendant was confronted by an objectionable panel. Strong sentiments in favor of the liquor law and its enforcement do not disqualify. Any jury panel is likely to include persons having such sentiments. To render a juror unsuitable he must be open to suspicion of bias in favor of the state or prejudice against the defendant, which would threaten normal exercise of sound judgment informed by the facts disclosed by the evidence and the law as declared by the court. That is a subject of challenge for cause. (R. S. 60-2906.) In this instance the record fails to disclose challenge for cause of any member of the trial jury.
When some jurors are improperly listed but the entire panel is not affected a motion to quash the entire panel does not lie. The court may purge the jury by discharging the individual jurors. Should the court fail to do' this on its own motion, the individual jurors are subject to principal challenge. (R. S. 62-1401, 62-1406, 60-2906.) In this instance there is no showing that any woman on the regular panel was challenged, or that any woman sat on the trial jury. Indeed, there is no showing that any member of the regular panel was a member of the trial jury.
The result of the foregoing is that, so far as the record discloses, defendant was tried by a fair and honest jury, chosen according to law, and has suffered no prejudice to his substantial rights because his motion to quash the panel was denied. (R. S. 62-1718.)
There is a contention that there was no substantial evidence to support the verdict. It is not necessary to summarize the evidence. The court has considered it, and holds it was ample to sustain the verdict.
The judgment of the district court in Carter’s case is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted as a persistent violator of the prohibitory law on separate counts of possession and transportation of intoxicants. He appeals, presenting two questions, which challenge the sufficiency of the information and of the evidence.
Touching the first of these, it is urged that the second count did not charge a felony because of the want of an allegation that prior to the commission of the offense for which he was being prosecuted he had theretofore been duly convicted of an offense against the prohibitory law. But in the counter abstract supplied by the state the information is set out in full and it contains no such defect as that suggested by counsel for defendant.
As regards the sufficiency of the evidence, it was fairly shown that while defendant was driving his automobile in a Topeka locality known as the “bottoms” he was pursued by two deputy sheriffs, and on hearing their siren he increased his speed and threw out of his car a gallon jug which broke and its contents were spilled on the railway track, but enough of the contents was found in a piece of the jug to show that it was whisky. Counsel for defendant has a talking point based on the fact that the deputy sheriffs captured defendant and took him to jail before they went back to the place where the jug was broken, and because the contents of the broken jug were not chemically analyzed. Witnesses for the state testified that the broken pieces of the jug were still wet with the liquid which it had contained, and from its smell they identified it as whisky. That fact, with the attendant circumstances, was sufficient to take the case to the jury. (State v. Brown, 119 Kan. 874, 241 Pac. 112; State v. Eccleston, ante, pp. 354, 356, 299 Pac. 646.)
The judgment is affirmed.
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